Definitions of phrases in claims - Who get's to decide?

Question

In patent application US 2012/0262358 of title "BEAM FORMING ANTENNA" one finds a very clever, I think very novel and useful new way to arrange vertical elements into a Yagi-Uda array. Irregardless of the fact the first claims are often way way broad in scope, I puzzle over the wording in the claims. To wit claim #1...

"1. A high frequency (HF) beam antenna comprising: a set of radiating vertical monopole elements; a set of horizontal dipole elements; Wherein said horizontal dipole elements are parasitically coupled to corresponding radiating vertical monopole elements and are configured to counterpoise radiation from the radiating vertical monopole elements and to effectively isolate the vertical monopole elements from the underlying ground."

The phrase "horizontal dipole elements" is most certainly defined by practitioners in the art as an antenna element with opposing voltages at the ends and a continuous current through the middle. This is an electrical specification, not mechanical. You find similar a definition for other things like a polarized water molecule.

I know from looking at the design and some of the various articles put out by the author the entire horizontal element is not a dipole, but only a counterpoise to the vertical element. The opposing voltage requirement for a dipole appears at the tip of the vertical and the opposite and equal ends of the horizontal member. In other words, this is a form of vertical dipole... there is no horizontal dipole anywhere in this design.

The "Wherein said horizontal dipole elements..." wording clumsily attempts to un-define the dipole aspect and correctly redefine as a counterpoise - which has equal voltages at the tips and is more akin to the familiar radials we see beneath many other monopole antennas.

It's as if he uses the term "horizontal dipole" to mechanically describe the horizontal member and then un-defines this to change it electrically to a counterpoise.

I know darn well the inventor knows better than this making me wonder who in their right mind wrote these contradictory clumsy claims.

Much of my clumsy claims, claim (no pun intended) depends on how one defines things in the claims. I am antenna designer by trade and these claims are knee slappers. Are technically odd words in claims actually not a problem when viewed by the legal eye?

Who decides what is legally correct in claims?

Thanks.

John

Answer 1

Ultimately a judge decides what any disputed claim terms mean and with that as a given, a jury decides if a particular thing someone is making, selling, using or importing falls within a claim's boundaries. In theory the judge is discerning what someone skilled in the art would understand it to mean. Of course most people skilled in the art would have horrible time trying to understand the average claim.

There are several reasons for that. One is that each claim must be a single sentence according to patent rules. That contributes to making them convoluted. There are also magic words like "comprising" and "means" that may not mean what you think they mean.

Case law has said that "a" usually, but not always, means one or more and that "a portion of X is covered" does not necessarily include the case of all of X being covered. There are hundreds of these and new ones are declared every month. Last month a case determined that "a patient", in the context of a particular claim, did not encompass the case of a single patient. It meant patients in general or most patients.

Figuring out what a claim covers is called claim construction. (Actually constucting claims is claim drafting.) There are several contradictory pairs of canons of claim construction. One is that a claim is read in light of the specification and drawings. Another is that the plain meaning of claim words governs and it is impermissible to import limitations from the specification into a claim.

Then there is English or any other natural language. It is not always easy to write an unambiguous sentence especially when you know it will be in someone else's interest to point out an alternate meaning. That gives us "respectively" and "and" where in normal English there would be an "or". But it really should be and.

Take the frequent situation where you need to convey that there might be one or more of something - say a handle. You quickly end up with ". . . the box having one or more handles where at least one of the one or more handles is blue."

I'm an EE who went into a computer science track to get out of E&M, antennas, etc. so I can't knowledgeably comment on the claim you mention. It is possible that the patent practitioner didn't understand antennas very well and the inventor assumed they couldn't add any value by trying to parse the claims.