Is the “Brief Summary of the Invention” section actually required?

Question

While writing my first non-provisional patent application, I came across a Medium article that claims that the "Brief Summary of the Invention" is not actually required and that it could be a mistake to include it. Here is the relevant section of the article, found here:

In truth, you do not need to have a summary of the invention. The US Patent Law, America Invents Act 35 U.S.C. §101 et seq., does not require a “Summary of the Invention” section nor does 37 C.F.R. 1.73, which states “A brief summary of the invention indicating its nature and substance, which may include a statement of the object of the invention, should precede the detailed description. Such summary should, when set forth, be commensurate with the invention as claimed and any object recited should be that of the invention as claimed. (all emphasis added)” “May” and “should” are different than “must” or “shall,” and, as such, indicate these are not a requirement but, instead, are a mere option. This is reinforced by the phrase “when set forth,” which means that it need not be set forth. See also MPEP 608.01(d) (also using optional “should” rather than obligatory “must”). If an Examiner attempts to require a “Summary of the Invention” section, gently remind them that there is no requirement and politely demur.

I don't know if I really buy this argument, considering that I have yet to come across any other articles claiming the same or any granted patents without a summary section, but the argument that the article makes does seem to make sense. Is this true?

Answer 1

It is absolutely true in the U.S.. Many practitioners now avoid such a summary for the reasons given.

And an examiner is very unlikely to require one to be added since (1) they also know this and (2) importantly, once filed, the fact that no new matter can be added is gospel. A newly drafted summary could carefully avoid adding new matter but it would be a danger.

You positively need an abstract and if there are drawings you absolutely need a brief description of the drawings. Other than that other things like "Object of the Invention" and even "Background of the Invention" are not needed in the specification. At the very least leave the word "invention" out. A section titled "Summary" is a little less likely to bite you. The courts have taken a statement in a Summary of the Invention as adding limitations to the claims that are not written in the claims, narrowing beyond what the examiner allowed and was issued.

A one minute search found US10680115 P-channel oxide semiconductor thin film transistor patented by Intel and granted in 2020 that does not have the word Summary at all. It has the word invention only once and in the single place it is safe. The search result at the USPTO for "has the word the but does not have the word summary" is -

Results of Search in US Patent Collection db for: (the ANDNOT Summary): 55452 patents. Hits 1 through 50 out of 55452

Related is the topic "patent profanity"