Patent drafting is probably the most important aspect of the patent application. IP right provides the applicant with the right of excluding others from using the same invention. But this is dependent upon the fact of how the claims are drafted thereby, making the drafting process the most important part. The nature of the patent document is techno-legal. The important part of the patent is the technical aspect for which the protection is claimed. These protected elements i.e. claims, have to be made very clear in the document. Claim drafting requires a culmination of art and science. The drafting of the claims should be done in a way that ensures the scope of the protection and makes the reader well aware of the boundary of scientific knowledge that the patents are claiming for.

Complex nature of drafting

There cannot be any one reason which can provide the reason for the patent application being complex in nature. In some cases, the inventive steps are still in a bit nascent stage making it difficult to define the scope of the patent. This will lead to a more difficult situation where the drafting will be required to cover the maximum area from the preliminary inventive steps.

As more experiments occur with the invention, there are chances when the scope of the patent gets shifted simultaneously. The shift in the inventive step will lead to the shifting of the boundaries of claims associated with the patents. Re-drafting can be required at various levels before getting to the complete specification.

Insufficient data sometimes makes the drafting complex where the available data is not sufficient to prove the claim's breadth in the application. The claims' breadth must be effectively supplemented with efficient data to get effective protection.

In cases, detailed descriptions are being expected from the applicant to make the invention clear to any person skilled in the field. With insufficient data in hand, it becomes difficult for the drafter to breathe life in the claims.

The drafting of the patent is not done keeping a normal person in the mind. The people dealing with the patent have the pre-requisite technical knowledge so the drafting must adhere to the claim language because one word is more than enough to refuse the grant of the patent.

When the patent is drafted, it is very important to draft keeping in mind the objections that can be raised. Hence, it becomes very important that additional information may need to be included in the specification to assist in addressing future objections.

Importance of drafting

To reap the benefits from patents, the patent owner must disclose his invention and define the scope of his exclusivity in a patent specification. If the patent specification does not sufficiently disclose the inventions, there are probable chances that the applicant may end up at risk of having his patent rights revoked. Therefore, a patent specification must be written with care to ensure the document passes should satisfy the entire angle from the technical as well as from a legal perspective. The drafting should not be done in a way that the claim may be defined in a much broader way or is much narrow. In both cases, the competitors can easily circumvent the patent. Patent grant is a time consuming and costly affair. It is highly advisable to take effective advice and help from experienced professionals before drafting a patent keeping in mind its importance. 

Originally Published by Khurana and Khurana, January 2021

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