By World Intellectual Property Organization
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Extra resources for WIPO Intellectual Property Handbook: Policy, Law and Use
The meaning of the claims is ultimately interpreted by the courts. The manner in which the courts will interpret a claim in turn depends upon the domestic law and to a certain extent the 32 WIPO Intellectual Property Handbook: Policy, Law and Use rules or regulations. Therefore, what a claim means will depend upon the jurisdiction in which it is being interpreted. 111 The courts, particularly in common law systems, attempt to determine what structure the language of the claims defines, and whether or not the alleged infringing structure corresponds to the structure defined in the language of the claims.
It is the sum of the differences that have been discovered which must be compared with the prior art and judged as to obviousness, and not each of the new elements taken individually, except where there is no technical link between them. 30 - In most cases, it is useful to assess inventive step in relation to three aspects, namely: the problem to be solved; Chapter 2 - Fields of Intellectual Property Protection - the solution to that problem; and - the advantageous effects, if any, of the invention with reference to the background art.
The right of the owner is called exclusive because it allows the exclusion of others from exploiting the invention and because the owner is the only one allowed to exploit the invention as long as others are not given an authorization, for example, by way of license to do so. This exclusive right of the patent owner has two main applications in practice, namely protection against infringement and the possibility of assigning or licensing the right, in part or in whole. Licensing of the patented invention will be discussed in a later chapter.