Yes, it is true that Jepson claims restrict the claims’ scope. However, some exceptions do exist in a few circumstances. The elements of Jepson claims are known to be in the prior art. Significantly, admission coming from a Jepson claim is only implied admission.
The use of a Jepson claim is not very broad. Twenty years earlier it was observed by Judge Pauline that “as per Modern style, the claims of patent no longer cover the salient features.” Additionally, it was noted that Jepson claims merged as an exception in this movement.
To claim the invention specifically and clearly one can use Jepson claim. Before using the claim it is good to know the advantages and disadvantages of the same.
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The most recent patent with a Jepson claim is U.S. Patent No. 9,744,559 covers the use of nanoparticle materials for “high contrast surface marking,” and is only found in Claim 24. 24. In a thermally activated, chemically based marking method comprising the steps of:
If the claim is invalidated, the PTO has zero responsibility for having allowed that claim in the first place, and no financial obligation to anyone – applicant, patentee, IPR petitioner or defendant – for the time and money wasted in pursuit of, and as a result of the issuance of, an invalid claim.
As we are talking about combination things, the admission of the thing – in combination – is an admission that works for the 103 style item.
For much these same reasons, most patents no longer particularly identify their “invention” beyond stating that it is embodied by each claim taken as a whole. Prof. Kayton, who trained generations of patent attorneys in his PRG classes was particularly adamant about avoiding Jepson claims.
Hypo’s are never satisfactory, and there’s a weakness in mine. But never mind, if it helps the debate. Suppose stents (cylindrical, network of struts, mesh, expandible) are of stainless steel and your invention (F) is to use a shape memory alloy (nitinol) instead.