On-shelf versus in-use claims

on-selfPatent claims generally include both structural and functional elements. Where a structural element is associated with a functional element, two types of association can be found:

  • the structural element is merely required to possess the capability of performing the functional element – a claim with the first type of association generally recites phrases such as “adapted to”, “capable of …ing” or “operable to”; or
  • the need for actual operation is strongly associated with the structural element – a claim with the second type of association generally recites “for …ing”.

The difference between these two types of association was established by following two landmark US judgments: Intel Corporation v US International Trade Commission (946 F 2d 821, Federal Circuit 1991) and Finjan, Inc v Secure Computing Corporation (626 F 3d 1197, Federal Circuit 2010).

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