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2.11.2 Construction of Specifications

Date Published

An essential prerequisite to any considerations under sec 40, or to any of the patentability issues of sec 18, is the construction of the specification (to ascertain the invention and what has been disclosed) and of the claims (to ascertain what has been claimed).

In general, a patent specification is construed like any other document. Any purely verbal or grammatical question that can be answered according to the ordinary rules for the construction of written documents is to be resolved accordingly (Welch Perrin & Co Pty Ltd v Worrel (1961-62) 106 CLR 588).  In this regard:

"... few, if any, English words are unambiguous or not susceptible of more than one meaning or have a plain meaning. Until a word, phrase or sentence is understood in the light of the surrounding circumstances, it is rarely possible to know what it means."

Manufacturers' Mutual Insurance Ltd v Withers & Anor (1988) 5 ANZ Insurance Cases 60-853 at 75,343.

However, as a patent specification is a public document that defines a monopoly, there are additional considerations that apply (see Rules of Construction).

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