5.5.4.2 Presumption against redundancy

Also in this Chapter:

• 5.5.4.1 The claims are construed as a legal document
• 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;
• 5.5.4.9 Reference numerals 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:

• 5.6.4 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)
• 5.6.7.1 Claims are Clear and Succinct - Redundant claims
• 5.6.8 Patent Eligible Subject Matter (Manner of Manufacture)​​​​​​​

Rule against redundancy 

​​​​​​​Appended claims affect the construction of the claims to which they refer. Therefore, to give proper effect to a statement of claim, the presumption is that each claim is of differing scope. Where possible, claims should be construed accordingly (Parkinson v Simon (1894) 11 RPC 493).

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 page 308). (See also 5.6.7.1 Claims are Clear and Succinct).

Relevant Case Law

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."