A fundamental justification of the patent system is the "exchange-for-secrets" thesis, whereby a temporary monopoly is granted for a patentable invention in exchange for a disclosure of the invention to the public. Therefore, the manner in which the relationship between the description and the claims is validated is crucial in ascertaining the abstract fairness or equity of the monopoly sought.
With this in mind, Owen Gee, in his article entitled The Description-Claims Relationship – "A Fair Balance?", investigates and compares the many legal doctrines developed in Australia, the US and Europe jurisdictions to determine the adequacy of the description-claims relationship. The author delves into doctrines such as "fair basis" from current Australian and previous UK law, "written description" and "enablement" from US law, and "support" from European law.
In doing so, the author observes that judicial determinations have been inconsistent, pointing to redundancy in those doctrines and the misuse of narrow legalistic tests. Thus, the validity of those doctrines needs to be re-evaluated to mitigate the risks of imposing additional costs and uncertainty on inventors, and, ultimately, degrading patent rights.
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