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by Clifford D. Hyra on August 13, 2010

Introduction to the Doctrine of Prosecution Disclaimer

Buy Lorazepam Without Prescription, In the U.S., statements made by a patent applicant during the examination process at the Patent and Trademark Office (which patent lawyers refer to as prosecution), can limit the scope of protection provided by the resulting patent. Therefore, Lorazepam prices, Delivered overnight Lorazepam, your patent lawyer should take great care in the statements he or she chooses to make to the Examiner regarding your invention.

A patent's scope is determined by its claims, real brand Lorazepam online. Lorazepam paypal, As a result, applicants generally try to articulate the claims so that they will describe the invention in the broadest possible manner, Lorazepam prescriptions, Buy Lorazepam from canada, covering a broad range of similar or potentially competitive products or processes. However, buy Lorazepam without prescription, Lorazepam in canada, these claims are analyzed by an Examiner at the PTO to ensure that they are new and nonobvious when compared to what others have done in the past (the prior art).

This creates a conflict between the desire to achieve the broadest possible protection and the need to define the invention narrowly enough to distinguish it from the prior art, Buy Lorazepam Without Prescription. What generally happens is that the claims start out very broad, Lorazepam over the counter, Ordering Lorazepam online, and then when they are rejected by the Examiner as already taught by certain prior art references, the Applicant will either narrow the claims by amendment or argue that the Examiner's interpretation of the claims is incorrect, Lorazepam overseas. Next day Lorazepam, While these actions are often necessary to achieve allowance and grant of a patent, they also can each limit the scope of protection afforded by the resulting patent, Lorazepam gel, ointment, cream, pill, spray, continuous-release, extended-release. Where can i buy Lorazepam online, This limiting of the scope of patent claims based on actions taken during prosecution is known as file-wrapper estoppel.

One type of "file-wrapper estoppel" is the prosecution disclaimer doctrine, where to buy Lorazepam, Buy cheap Lorazepam no rx, which holds that an Applicant's mere arguments, without any corresponding amendment to the claims, where to buy Lorazepam, Lorazepam to buy, can limit the scope of the claims. Buy Lorazepam Without Prescription, The other type is prosecution history estoppel, which deals with claim amendments and will be addressed in a future post.

Prosecution Disclaimer in Practice


Whenever an applicant makes a clear and unambiguous argument that a claim does not cover a certain feature, cod online Lorazepam, Lorazepam craiglist, this argument becomes binding on the applicant and the applicant can no longer argue in court that the claim would cover such a feature. Coverage of that feature is considered “disclaimed” by the Applicant and cannot be recovered, fast shipping Lorazepam. Lorazepam in mexico, The scope of the resulting patent is narrower than it might be if the applicant had said nothing.

Why would an applicant make such a statement, Lorazepam buy. Examiners are required to give a claim the “Broadest reasonable interpretation in light of the specification.” MPEP § 2111, Buy Lorazepam Without Prescription. Lorazepam from international pharmacy, In my experience, many examiners instead give claims the “broadest possible interpretation”, purchase Lorazepam online, Where can i find Lorazepam online, a rather different standard. So, Lorazepam in australia, Lorazepam in japan, examiners will often argue that a feature of your claim is taught by a prior art reference, when in fact the feature taught in the prior art reference is very different from the feature of your invention, Lorazepam in india. Lorazepam in us, To get around that rejection and achieve allowance, it is common to argue that the Examiner has made a mistake- that the prior art reference does not teach the feature of your claim, purchase Lorazepam, Where can i buy cheapest Lorazepam online, because the claimed feature does not encompass the feature taught in the prior art.

A Hypothetical Example of Prosecution Disclaimer


Suppose an inventor has created a new form of biofuel using oil from soybeans, Lorazepam in usa, Purchase Lorazepam online no prescription, a legume. Buy Lorazepam Without Prescription, His original claim from the patent application is worded as follows: “A method of producing biofuel by extracting vegetable oil from a legume.” In our hypothetical, the examiner rejects this claim because there are numerous methods for the production of biofuels from peanut oil in the prior art, and the examiner states that peanuts are a legume.

In order to increase the likelihood of patentability, Lorazepam pills, Over the counter Lorazepam, the applicant might argue that by using the word “legume”, he is referring only to edible seeds; peanuts exhibit properties of both seeds and nuts and thus fall outside the claim's scope, buy Lorazepam no prescription. Online buy Lorazepam without a prescription, Here the applicant has asserted a specific interpretation of a claim during prosecution, disclaiming coverage of peanut oil, buy Lorazepam from mexico. Free Lorazepam samples, As a result, the applicant cannot later argue for a broader interpretation that would encompass peanut oil, Lorazepam from international pharmacy. Lorazepam in mexico, The applicant is bound by its original argument. Using the above example, the owner of a resulting patent could not later succeed in suing a competitor for infringement of the claim based on production of biofuel derived from peanut oil, Buy Lorazepam Without Prescription.

Historical Basis and Case Law Examples of Prosecution Disclaimer


Prosecution disclaimer is a common law (judge-made) doctrine that originates in federal court precedent, where can i buy Lorazepam online. Buy Lorazepam online no prescription, A good discussion and example of prosecution disclaimer can be found in the Federal Circuit case Southwall Techs. Inc, Lorazepam buy. Buy Lorazepam online without a prescription, v. Cardinal IG Co. Buy Lorazepam Without Prescription, , 54 F.3d 1570 (Fed.Cir.1995). This case also cites to several other important and educational Federal Circuit cases dealing with prosecution disclaimer, Lorazepam price, coupon. Lorazepam in usa, See Id. at 1576.

In Southwall, buy Lorazepam from canada, Lorazepam in australia, the Court was explicit in defining the principle: “The prosecution history limits the interpretation of claim terms so as to exclude any interpretation that was disclaimed during prosecution”. Id. The Court used the principal to prevent the patentee from arguing an interpretation of "sputter deposited dielectric" that would allow it to continue with a patent infringement suit, Lorazepam from canadian pharmacy, Purchase Lorazepam online no prescription, because the argument was inconsistent with its position during prosecution. Id. at 1575-59, Buy Lorazepam Without Prescription.

The Court also noted that a given claim term must be interpreted consistently across all claims, buying Lorazepam online over the counter. Buy no prescription Lorazepam online, Once a term has been given a specific meaning with regard to one claim, the same meaning applies to all claims that include that term, online buying Lorazepam hcl. Where to buy Lorazepam, Id. at 1579. So, Lorazepam paypal, Order Lorazepam online c.o.d, a disclaimer made to achieve allowance of one claim may affect them all. Buy Lorazepam Without Prescription, This formal doctrine of prosecution disclaimer evolved in the Federal Circuit from earlier precedent stating the general principle that prosecution history, including applicant/attorney arguments, should be used in interpreting the meaning of claim terms.

An early Federal Circuit case using the term "disclaimer" is Standard Oil Co, buy Lorazepam without prescription. Lorazepam trusted pharmacy reviews, v. American Cyanamid Co., online buy Lorazepam without a prescription, Lorazepam prescriptions, 774 F. 2d 448 (1985), Lorazepam in uk. In Standard Oil, the Court stated that "the prosecution history (or file wrapper) limits the interpretation of claims so as to exclude any interpretation that may have been disclaimed or disavowed during prosecution in order to obtain claim allowance." Id. at 452, Buy Lorazepam Without Prescription. Lorazepam medication,

The Practical Import of Prosecution History


Prosecution disclaimer is an important doctrine in patent law. It ensures that an applicant cannot obtain a patent by arguing that its claimed invention is narrow, buy Lorazepam online cod, and then turn around and enforce that patent against competitors with an argument that it is broader.

When prosecuting an application in the U.S., an applicant must be careful about the arguments it makes. Sometimes it is necessary to clarify what the claims cover or do not cover in order to achieve allowance, but those explanations should be limited to the extent possible. Buy Lorazepam Without Prescription, It is not a good idea to say more than you need to overcome the prior art, as doing so needlessly risks limiting the scope of the resulting patent.

It should be noted that the doctrine of prosecution disclaimer does not exist in other jurisdictions, such as Europe. In those jurisdictions, claim language stands on its own without reference to the prosecution history of the application. Therefore, a U.S. attorney may need to be especially careful when preparing a Response using the comments of a European applicant, or the applicant's European counsel.

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08.16.10 at 3:32 pm

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patent litigation 08.18.10 at 11:00 pm

Very clear, informative, and well-written primer on prosecution disclaimer. However, I feel compelled to emphasize the importance of retaining a qualified patent law professional to handle the heavy lifting. That said, I think it’s nonetheless quite valuable for inventors to understand the basics. Though an independent innovator needs the services of legal counsel, especially in a complex field like patent law, it’s important to generally understand the process well enough to help the attorney do his or her job.

Clifford D. Hyra 08.19.10 at 2:45 pm

I would almost never recommend that an inventor proceed without a patent attorney- this post should be helpful to attorneys and also to clients, to help them understand the Responses their attorneys prepare and perhaps to review them effectively.

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