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Encyclopedia > Disclaimer (patent)
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In patent law, a disclaimer is an amendment consisting in limiting a claim of a patent or patent application by introducing a negative technical feature. During prosecution, such amendments are sometimes made by applicants to their application, with the hope of fulfilling some patentability criterions, such as the novelty criterion. Image File history File links Download high resolution version (3000x3002, 6358 KB) The Blue Marble: This photo is of Africa, Antarctica, and the Arabian Peninsula as taken en route to the Moon by Apollo 17s Harrison Schmitt on December 7, 1972. ... A patent is a set of exclusive rights granted by a state to a person for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or substance (known as an invention) which is new, inventive and useful. ... Patent claims define the extent of the protection conferred by a patent, in technical terms. ... A patent application is a request filed before a patent office in which an applicant applies for a patent for an invention. ... Ex parte proceedings before a patent office. ... Within the context of a national or multilateral body of law, an invention is patentable or, in other words, it satisfies the patentability requirements if it meets the legal conditions to be granted a patent. ... Novelty is a patentability test, according to which an invention is not patentable if it was already known before the date of filing, or before the date of priority if a priority is claimed, of the patent application. ...

The allowability of disclaimers is usually subject to certain conditions, which may vary from one country to another.

European Patent Office (EPO)

Under the case law of the Boards of Appeal of the EPO, disclaimers are allowed only in certain circumstances, as decided in G 1/03 and G 2/03. Case law (precedential law) is the body of judge-made law and legal decisions that interprets prior case law, statutes and other legal authority -- including doctrinal writings by legal scholars such as the Corpus Juris Secundum, Halsburys Laws of England or the doctinal writings found in the Recueil Dalloz... Decisions of the first instances of the European Patent Office (EPO) can be appealed, i. ...

"A disclaimer [which is not supported in the description] may be allowable in order to:

  • restore novelty by delimiting a claim against state of the art under Article 54(3) and (4) EPC;
  • restore novelty by delimiting a claim against an accidental anticipation under Article 54(2) EPC; an anticipation is accidental if it is so unrelated to and remote from the claimed invention that the person skilled in the art would never have taken it into consideration when making the invention; and
  • disclaim subject-matter which, under Articles 52 to 57 EPC, is excluded from patentability for non-technical reasons." [1]



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