When to Use "Said" in Patent Claims
J. Douglas Miller at Small Business IP Protection and Managament has given his thoughts on the age-old question of just what is the "Proper Use of SAID in Patent Claims"
I prefer to use "said" for only the first time that an element appears in any dependent claim, as a signal for the reader to look back to an earlier claim for the antecedent basis. Leave your comment below.There are currently three different practices used in writing patent
claims. The first time an element or part is recited in a patent claim, it must
be preceded by the indefinite article “a” or “an” (although some exceptions
exist for “means” and plural recitations). For each repeated reference of an
element, one practice is to use “said” preceding the element and use “the” for
anything else. Alternatively, some practitioners precede everything with
“said” upon repetition thereof. A third, and somewhat more recent
practice, is to omit the use of “said”, and simply use “the” to precede
everything repeated.
26 Comments:
My practice is to use "the" and never "said." "Said" is simply archaic, and does not signal to look backward any better than "the." The person of ordinary skill in the art reading a patent would not distinguish between the two, other than to think that "said" is just another strange example of legalistic jargon.
I agree with the first comment. I asked my Stanford Ph.D. (Electrical Engineering) father to read a patent and he didn't understand the claims at all. He couldn't get past the word "said". Imagine how a jury of non-engineering or scientists might react hearing the word "said" in court over and over again. Think about that the next time you draft a patent.
You convinced me. No more "said" in my claims.
I'm glad to see the previous comments. Here in Europe we only use "the" usless we are writing for the USPTO. If you use "the", then when you want emphasis you can meaningfully use "the said".
For many years, I was a practitioner of the "said" word for antecedent-basis reasons, but I no longer urge such use for this reason: Mis-translations from English to other languages -- it can lead to strange outcomes.
My book, "How to Write a Patent Application" (PLI N.Y.) has recommended for over 10 years against use of "said" since it means "the", and is just jargon that makes it harder for the Judge to understand the claim. I know of no advanatage of using said.
Jeff Sheldon
I am perhaps a bit old school, or maybe just contrarian, but I must defend the old school. I use the indefinite articles "a" or "an" or no article in introducing an element a first time, and then use the definite article "said" to refer to the antecedent element. I use "the" in two cases. The first case is when referring to something in the preamble to a claim, thus signaling to the reader that the information referred to is not an element of the claim. The second case is when referring to a non-element of a claim used for context, such as a top, bottom, left or right side of an element.
For example, if an invention relates to a razor, a claim might read, "A razor for use on an animal comprising: a handle having a top end and a bottom end; a blade holder coupled to the top end of said handle adapted to receive a blade; a lock coupled to said blade holder and said handle adapted to firmly lock the blade in place; and a lubricant dispenser coupled to said handle adapted to dispense lubricant onto the blade when used to shave the animal." You want to distinguish that the blade is not an element of the invention (since your client will likely sell the razor without blades). Also, the top end is part of an element, not a separate element of the claim. Similarly, the animal is not part of the invention, it is referred to only for context and to provide a use of the invention and thus is distinguished from an element of the invention.
I have been told by patent lawyers with decades of experience more than me, to ensure clarity of claim construction, choose a rule, have a good reason to use it, abide by the rule, be consistent in applying your rule throughout a patent (particularly when amending claims later), and defend your rule. This way, when some day you as a prosecutor are deposed regarding your choice of claim language, you can explain and defend your use of particular language, and your intended meaning of the language chosen.
Claim language defines the metes and bounds of the IP right. Is it that much to ask that a judge understand syntax used in any property definition? If a judge interprets a real property deed, the judge must similarly understand the language used. Use of the may replace said in the summary of the invention, and then you can have the judge read the summary for easier understanding if "said" is really so difficult for him or her.
Finally, any translator of a patent should understand that they are translating a legal document, and therefore, if confused by the meaning of "said," or any other term, should seek qualified legal advice. Translators should be happy that we don't decline and conjugate words in English like many languages such as German's use of "der" "die" or "das" for for the English "the". If your translator can't figure out the correct meaning, perhaps you are using the wrong translator, or the translator is not getting qualified assistance to translate a legal patent document.
The same may be said for translating "comprising" versus "consisting" since the transitional phrases have vastly different legal meanings (this doesn't mean we should abandon their use, we just need to be sure their meanings are understood across lingual boundaries), it is critical that a translator be guided by a lawyer to understand which translated meaning is the proper legal equivalent in the translated tongue.
Not all difficult tasks can just be simplified away.
I cannot but think that those parties suggesting substitution of "the" for "said" don't work with claims for complex inventions. The word "the" is not synonymous with "said," and cannot replace it without requiring additional verbiage to make it clear that one must look back.
I am in agreement with Mr. Albrecht.
"The" can refer to a feature previously mentioned, or to a feature previously implicit. "Said" refers to a feature previously explicitly mentioned, and can thus sometimes eliminate an ambiguity. Where that is not needed, I personally think "the" usually reads better.
Enough said and done.
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