European patents: How to balance patent protection and legal certainty

By François Grange,

Finding the right balance between patent protection and legal certainty is a vital part of effective European patent drafting. The Order of the Court of Appeal issued by the Unified Patent Court emphasises the importance of precise drafting of patent claims to avoid ambiguities and guarantee the protection sought, as François Grange explains. 

Whether in the context of patent infringement or validity, finding the right balance between adequate protection for the patent holder, on the one hand, and sufficient legal certainty for third parties, on the other, is not always easy to obtain. 

This is why, in the context of European patents, the Order of the Court of Appeal of the Unified Patent Court was so eagerly awaited (see case UPC_CoA_335/2023). 

The Order recalls the principle that "the patent claim is not only the starting point, but the decisive basis for determining the protective scope of a European patent under Article 69 of the European Patent Convention (EPC) in conjunction with the Protocol on the Interpretation of Art. 69 EPC.” 

It emerges from reading the notes at the head of the Order that the interpretative protocol deserves careful rereading and is interesting in many respects; in particular, in the balance sought in its first article, reproduced here in part:  

“The interpretation of a patent claim does not depend solely on the strict, literal meaning of the wording used. Rather, the description and the drawings must always be used as explanatory aids for the interpretation of the patent claim and not only to resolve any ambiguities in the patent claim. This does not mean that the patent claim merely serves as a guideline but that its subject matter also extends to what, after examination of the description and drawings, appears to be the subject matter for which the patent proprietor seeks protection [...] from the point of view of a person skilled in the art." 

Care should be taken, therefore, in the drafting of the claims forming the primary legal framework of any patent application, to reflect the applicant's intention regarding the protection sought, while trying to avoid the pitfalls of clarity and circumvent the obstacles of the prior art. 

For further insight or tailored support for your European patent claim drafting, speak to your Novagraaf attorney or contact us below. 

François Grange is a European Patent Attorney based at Novagraaf in France. 

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