Kirin-Amgen V Hoechst Marion Roussel - Consequences


This case affirmed that: "Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance was addressed would have understood the author to be using the words to mean. Notice, however, that it is not, as is sometimes said, "the meaning of the words the author used", but rather what the notional addressee would have understood the author to mean by using those words." (Paragraph 32 of the judgement)

It is a common misunderstanding that the words of the claims should be understood as what the author used them to mean. This is not the case. Rather, the claims should be understood as what a skilled person (at the date of filing of the application) would have understood the author to be using the words to mean.

Additionally, if a claim is intended to cover products or processes which involve the use of technology unknown at the time the claim was drafted, then the patent specification and claims based thereon should be drafted so that a person skilled in the art would understand the description in a way which was sufficiently general to include the new technology.

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