What You Need to Know About the Written Description Requirement in Patents

I’m Andy Berks, patent attorney. Today I’m going to tell you about the written description requirement and why its important.

The written description requirement is a substantive requirement of patentability that essentially requires that the patent specification must support what is discussed in the claims. This means the spec must discuss in detail what is meant by the claims and must explain in “full, clear, concise, and exact terms” what is going on.

To illustrate this, let me use a simple example. Suppose you file a patent application on a new machine that washes dishes, but the claims recite a method for mopping floors. Obviously, that’s a disconnect and most likely an examiner would find that the claims do not meet the written description requirement.

You may ask: this is so obvious, how can the spec get disconnected from the claims, so something like describing washing dishes morphs into claims on mopping floors?

One way is that during patent prosecution, when an examiner is rejecting the claims and the applicant is amending the claims to satisfy the examiner, the amendments can get away from what was described in the specification. Another common cause for this is sloppy patent drafting. There was a time, not that long ago, when an inventor could throw together a sloppy disclosure and expect to get claims allowed. But nowadays, examiners have become much more picky about patent drafting. So getting this right when filing an application can make or break a patent, and is important to get an issued patent.

So this brings up a key point that patents should always be drafted by professionals like me who know what they are doing. Written description problems are a very easy trap for inexperienced lawyers and DIY applicants to fall into that can delay or prevent a patent from issuing.

My job is getting issued patents out the door. We’ve been doing this for many years and are experts at written description and other substantive requirements. You can contact me with any questions or comments about this. Thanks for watching, stay healthy, and have a great day.

My job is getting issued patents out the door, including written descriptions and prior art searches. You can schedule a fifteen minute call to discuss your patent needs or write to me with with comments about this video and your general patent questions.