by Dennis Crouch
You may have heard that most US utility patent claims use the open transition phrase COMPRISING. Here’s the data to support that hearsay. The chart below shows data from independent claims gleaned from issued US patens grouped by patent issue year.
To make the chart, I calculated the percentage of independent claims that include the phrase comprising or comprises or comprise as the first traditional (or only) transitional phrase within the claim text.
Patent courses traditionally talk about the three primary transition phrases:
- Comprising/Comprises/Comprised of (Open Transition)
- Consisting of (Closed Transition)
- Consisting Essentially Of (Hybrid Transition)
In recent patents, fewer than 1% of claims use “consisting of” or consisting essentially of.” Rather, the biggest non-comprising segment is the category of claims that lack any traditional phrase as shown in the chart below. These non-traditional claims might use the word “having” or “including” as a transitional phrase, or they might not use any word at all.
- One or more non-transitory, computer-readable media having instructions that, when executed by one or more processors, cause a device to: …
- A non-transitory computer-readable medium configured to store instructions that, when executed by one or more processors, cause the one or more processors to perform operations that include:
- A handheld, self contained, air cooled induction heater including …
- A compound or a pharmaceutically acceptable salt thereof, wherein said compound is: …
- A compound, or a pharmaceutically acceptable salt thereof, having the structure of
- A method, by one or more processors, for managing text in rendered images: [No transition at all except for a colon]
- Intermediate of formula B-20 [showing structural diagram of compound and going on to include several markush groups]
In many cases it appears that attorneys may be using the alternative transitions as part of their claim stratification strategy. Thus, many of the claims relying upon a non-traditional transition sit alongside other claims in the same patent that use “comprising.”