What is an independent claim vs. a dependent claim?
Minneapolis patent attorney Suneel Arora of Schwegman Lundberg & Woessner distinguishes independent and dependent patent claims.
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When we draft claims, we draft both independent claims and dependent claims. An independent claim basically sets a minimum set of requirements that an accused product or process has to meet in order to infringe that claim. It’s self-contained. A dependent claim basically refers to another claim. So you can draft an independent claim one that says here are the elements that any accused product has to meet in order to infringe claim one, the independent claim. And then you can have claim two, which says in addition to claim one it incorporates by reference all of the limitations or the requirements of claim one but it adds further requirements that have to be met in order for infringement to be present.
And so the idea in drafting a set of claims is to come up with varying degrees or varying scopes of claim coverage. So the independent claims are typically we like to keep those broad but we like to have meaningful fallback position in the event that claim one is later found to be invalid because it was inadvertently drafted to be too broad and accidentally encompasses the prior art. So from a patent attorney’s standpoint when we draft claims we tend to like to get some good, broad independent claims, some intermediate claims, which can be independent or can be other additional dependent claim limitations that get added on to the independent claims.
And we like to claim the invention from different perspectives, as a device or as a method or as a product that’s being sold. We like to look at claims, look at what the futures are, and really think of all the different ways that we claim it so that the claims can be valid and so that they can actually provide meaningful coverage to protect the product and the different features of the product that you’re trying to get your competitive end for.