Patent Law FAQ

In patent claims, there are two types of acceptable antecedent basis that don’t require explicit introduction: inherent and implied antecedent basis.

• Inherent antecedent basis occurs when the claim element is necessarily present in the claimed subject matter. For example, “the outer surface” of a sphere doesn’t need explicit introduction because a sphere inherently has an outer surface.
• Implied antecedent basis is when the claim element is implicitly present based on the context of the claim. For instance, “the handle” might have implied antecedent basis in a claim about a cup, even if not explicitly introduced, because cups commonly have handles.

According to MPEP 2173.05(e): “The lack of clarity could arise where a claim refers to “said lever” or “the lever,” where the claim contains no earlier recitation or limitation of a lever and where it would be unclear as to what element the limitation was making reference.” However, the MPEP also notes that “inherent components of elements recited have antecedent basis in the recitation of the components themselves.”

To learn more:

• antecedent basis
• inherent antecedent basis
• implied antecedent basis
• patent claims
• claim drafting