5.5.4.9 Reference Numerals in Claims

Also in this Chapter:

• 5.5.4.1 The claims are construed as a legal document
• 5.5.4.2 Presumption against redundancy
• 5.5.4.3 Omnibus claims
• 5.5.4.4 Swiss claims
• 5.5.4.5 Product by process claims
• 5.5.4.6 Parametric claims
• 5.5.4.7 ‘For use in’, ‘when used’, and similar wording in claims
• 5.5.4.8 ‘Comprises‘, ‘includes‘, ‘consists of‘, and ‘contains‘ in claims​​​​​​​
• 5.5.4.10 Relative terms
• 5.5.4.11 ‘Substantially‘, ‘about‘, and ‘generally’
• 5.5.4.12 Appended claims

Key Legislation: ​​​​​​​

Patents Act:

• s7 Novelty, inventive step and innovative step  
• s7A Meaning of useful  
• s18 Patentable inventions
• s40 Specifications 
• s41 Specifications: micro-organisms  

Related Chapters:

• 5.5.4.3 Omnibus claims
• 5.6.7.1 Claims are Clear and Succinct;
• 5.6.7.3 Support for the Claims
• ​​​​​​​5.6.4 Citations: Prior art base and construction of prior art
• 5.6.5 Novelty, Whole of Contents, and Secret Use
• 5.6.6 Inventive Step
• 5.6.7 Full Disclosure, Sufficiency, Clarity, Support and Usefulness (s40)
• 5.6.8 Patent Eligible Subject Matter (Manner of Manufacture)

Effects of Reference Numerals

Some claims will include reference numerals referring to what is depicted in the drawings, graphics, or photographs. These are generally not objectionable. They do not place any limitation on the claims, unless this intention is clearly expressed. It does not matter whether the numerals do or do not appear in brackets.

In general, if a reference numeral follows a generic term, it is taken as referring to an example of the matter claimed, that is, the specific example illustrated in the drawing, graphic, or photograph. In such cases, reference numerals are being used to make it easier to understand the claim, without affecting the breadth of its scope. The broad construction of the claim does not depend on these references, so examiners are not required to check or report on their accuracy.

However, if the wording of the claim makes it clear that a reference numeral is being used to identify an express feature of the claim in a limiting manner, the claim must be construed in the light of those references.

See Rodi and Wienenbergen A.G. v Henry Showell Ltd (1969) RPC 367 at page 378; and Philips Electronic and Associated Industries Ltd Patent [1987] RPC 244.

Where a reference numeral does not place any limitations on a claim, that is, the claim does not rely on the reference to define the invention, then the claim will meet the requirements of s40(3A).