Australian patent claim interpretation – the preamble – 2 February 2016
Under Australian law, the preamble to a patent claim is limiting. The preamble often indicates the intent of the claimed invention. Whilst there is some diverging authority as to the extent to which an Australian patent claim is limited by a recital of intent (as we have discussed here and here), orthodoxy suggests that a claim is limited to suitability for the recited intent.
A recent decision  of the Full Federal Court  illustrates an approach consistent with orthodoxy and goes one step further to confirm that the limitations conveyed by the preamble can in and of themselves amount to a patentable departure from the prior art.
The preamble to the claim ‘a garden hose’ is construed  as ‘a hose capable of being used as a garden hose and performing the functions one would ordinarily expect a garden hose to perform’ and Justices Kenny and Beach make explicit  that ‘In our view, the opening words of claim 1 “a garden hose” provide a limitation on the claim scope’.
Their Honours go on to conclude  that this limitation is sufficient departure from a prior art oxygen hose for a ‘stowable aviation crew oxygen mask’ to sustain an Australian innovation patent.
 The Court of first appeal for Australian patent matters
 At paragraph 47
 At paragraph 226
 At paragraph 230