So this patent US9459044B1, the title suggests it is about both method and apparatus, and I see there are much content on the drawings and description of the device. However in the claim section, I only find claims on the method, does it mean that design of the device is not covered by this patent ?

In the claim 17, "A freeze drying method comprising: closed-cell insulation having an R value of at least 17 adhering in contact with..." this sentence reads more like a device design instead of any step in a freeze drying method ?

2 Answers 2


Steps in a method claim often describe the physical things the steps are performed with or on. Patent applications are often written covering both apparatus’s and methods of making or using the apparatus. This is reflected in titles. In a specific patent issued from an application (there might be many) has a set of claims that may have a commonality. Say all methods. In the US we generally do not go back and amend the title and abstract etc. to reflect the claims that are granted.

  • With regards to your last sentence, there are many countries that are very strict when it comes to title and abstract and they require that both or at least the title are in line with the claims. I very much prefer the US practice in that respect. At the EPO the examiner may change the title and the abstract if they feel like it, that is way better than those countries that issue an office action simply because the title or the abstract is not OK. Commented Nov 6, 2019 at 8:07

Your question seems to conflate utility patents with design patents. An issued design patent starts with a "D", as in D123,456. That covers only ornamental design. A utility patent covers function. Because you're asking about a utility patent, the ornamental design cannot be protected by that patent. Of course, there may be a design patent out there, or you may be referencing a functional design (like the design of a circuit).

Because of "continuation practice", it is possible to claim one group of things in a first filing, and then claim a second group of things in a second filing based on the original patent filing. So for example, I might file for a patent on the car. In my first application, I might seek to claim only the muffler. In the second application (which is a continuation of the first), I might seek to claim the internal combustion engine, etc. As long as the original patent application enabled a person of ordinary skill in the art to build it, it can be claimed in a timely-filed continuation.

Frequently, the inventor and patent lawyer aren't sure which claims will issue when they file the patent application. They write the title and abstract so that they generally describe the entire device and most of the possible claims. After a lot of back and forth with the examiner, a set of claims is allowed that quite often no longer matches the title or abstract. There is nothing inherently improper in doing that in the US, though best practices would be to seek to amend the title to better match the claims. Perhaps more importantly, the uninformed part of the anti-patent lobby often looks to the title and abstract to describe a patent. So an abstract that reads "A method for vehicular propulsion is described herein" may be combined with claims that cover only regenerative braking, but because many people don't understand that the claims -- and not the abstract -- describe what is protected by the issued patent, they think that the patent covers all methods for vehicular propulsion. They then get bent out of shape over the idea that another low quality patent has issued covering technology that is 100 years old. For that reason alone, it is important to the inventor community that abstracts accurately describe the invention.

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