5.5.3.5 Reject the absurd

Also in this Chapter:

• 5.5.3.1 Words are given plain meaning
• 5.5.3.2 Read the specification as a whole;
• 5.5.3.3 Purposive construction
• 5.5.3.4 Dictionary Principle
• 5.5.3.6 Description Construed as a Technical Document
• 5.5.3.7 Errors, Mistakes, Omissions

Key Legislation: 

Patents Act:

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

Related Chapters:

• 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)

Adopt a common-sense approach to construction

Where a claim is capable of more than one construction, then an absurd construction should be rejected in favour of an alternative construction (Henriksen v Tallon (1965) RPC 434).

EMI v Lissen 56 RPC 23 states:

"... if possible, a specification should be construed so as not to lead to a foolish result or one which the patentee could not have contemplated."

That is the task of construction is not to develop or create a desired narrative to fit a set of facts. Rather a common-sense approach is to be taken.     

During examination, no objection should be taken when there is an alternative meaning that is clearly absurd.

However, in some circumstances, the alternative is superficially absurd yet has an element of plausibility. In these situations, the examiner may raise an objection in the first instance. In such cases examiners should provide sufficient reasoning as to how such a construction is plausible and applicable in the current case.