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Patent Drafting after Johnston
In Johnson & Johnston Assocs. v. R.E. Service Co., 285 F.3d 1046 (Fed. Cir. 2002) the Federal Circuit turned at least one aspect of patent drafting practice on its ear. Before Johnson, generally accepted patent drafting techniques encouraged the disclosure of alternative subject matter in the specification, particularly for claimed elements of the invention, in order to possibly broaden the scope of the claims of the resultant patent. Post Johnson, such practices may clearly backfire as the court held that subject matter disclosed in a patent's specification, but not claimed, is dedicated to the public. Although Johnson may well have a major impact on claim drafting techniques, this case will likely have a greater impact on techniques used for drafting the patent specification.
One strategy for avoiding the impact of Johnson is to include 'means-plus-function' claims, which cover all structure disclosed in the specification for performing the claimed function. 35 U.S.C. Section 112, paragraph 6 provides that an element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material or acts described in the specification and equivalents thereof.
The inclusion of claims reciting a structural element generic to the disclosed alternatives, as well as Markush claims listing all disclosed alternatives, have also been recommended as mechanisms for avoiding the impact of Johnson.
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