The Information Value of Patent Claims

The standard rationale for patent claims is that they describe the invention and provide notice of patent infringement to competitors. This notice theory, however, is simply untrue—because patent litigation is highly unpredictable, claims do not provide notice of infringement. Accordingly, a large literature argues that claims are valueless, and that courts should instead determine patent scope using other sources such as the patent specification, and then either abolish claims outright or creatively construe claim text to conform to the externally-determined results.