A Presumption is Made Against Redundancy

Date Published

Appended claims affect the construction of the claims to which they refer. In order to give proper effect to a statement of claim, the presumption is that each claim is of differing scope and, where possible, claims should be construed accordingly (Parkinson v Simon (1894) 11 RPC 493). In The Electric Construction Co. Ld. v The Imperial Tramways Co. Ld., and The British Thomson-Houston Co. Ld. (1900) 17 RPC 537 at page 550, it was stated:

"Claim 2 in effect, differs only from claim 1 by the addition to it of the words '(supported) partly or wholly by springs from the car body, or carriage body or truck'. The words of claim 1 are afterwards repeated verbatim and you do not need anything more to show that the differentiation of meaning is involved in those words 'supported partly or wholly by springs'. That is the only difference."

Thus while claim 1 may include "springs", it must also encompass matter that makes it differ in scope from claim 2.  Therefore, it must include "without springs", a meaning which would not necessarily have been placed upon claim 1 in the absence of claim 2.

In Pierre Treand's Application (1961) AOJP 2164, the above principle was referred to as follows:

"... it is significant to note that the material for the bathroom element is specifically referred to only in claim 7, thus making it clear that claims 1 to 6 generally envisage a bathroom constructed of any material whatsoever. It is also noteworthy that claim 5 introduces as a feature of the invention an opening for a door, thus indicating that the constructions claimed in claims 1 to 4 do not necessarily possess such an opening."

However, the rule against redundancy is not absolute and invariable, and can bend to other considerations if they are weighty enough (David Kahn Inc v Conway Stewart & Co Ltd [1974] RPC 279 at 308).