Claim construction: stages and deadlines
Claim construction fixes the meaning of a patent's claims before the dispute moves to substance. It runs through preliminary review, written submissions, optional technical clarification, and a ruling that fixes scope for the rest of the case. Once the ruling issues, the scope rarely reopens, and missing a submission window is the most common way a party loses ground early.
What changes once construction starts
The moment a panel opens claim construction, both sides work against the same fixed sequence. Nothing about infringement or validity is decided at this point. The only question on the table is what the words of the claim mean, term by term, and that meaning then governs every argument that follows.
This is why the stage carries more weight than its short duration suggests. A construction that reads a term narrowly can decide an infringement question before the infringement question is ever formally argued. A party that treats this stage as a formality usually discovers the cost later, when the scope is already fixed.
| Stage | What happens | Who acts | Timing |
|---|---|---|---|
| Preliminary review | The panel checks that the claims in dispute are properly identified | Case management judge | Early, before any hearing is set |
| Written submissions | Each side files its proposed construction of the disputed terms | Parties, through counsel | Fixed window set by the case management order |
| Technical clarification | The panel may call for expert input on how a term is understood in the field | Court-appointed or party-instructed expert | Set case by case, only if needed |
| Oral hearing | Parties argue their proposed construction directly before the panel | Panel and both parties | Scheduled once submissions close |
| Ruling on construction | The panel fixes the meaning of the claims for the rest of the case | Panel | Point of no return for that scope |
What to do
- Identify the disputed terms. Instruct patent counsel to isolate the exact claim language that is actually in dispute, term by term.
- File the proposed construction. Counsel submits your reading of each term within the window set by the case management order.
- Prepare the technical support. The technical expert drafts a short, plain explanation of how the term is understood in the relevant field.
- Respond to the other side's construction. Counsel files a reply addressing every point of disagreement, not only the strongest one.
- Align for the oral hearing. Counsel and the expert agree on the exact position to be argued before the panel.
- Record the ruling. The case team logs the fixed scope, because every later argument in the dispute will refer back to it.
Who decides
A panel of judges, at times assisted by a technically qualified member, hears the parties on construction. The panel decides only what the words of the claim mean; it does not rule on infringement or validity at this stage. Once issued, the panel's construction binds every later stage of the same case, including any appeal on the merits.
If your situation differs
If the dispute concerns a single term only, the written stage tends to move faster, because both sides can narrow their submissions to that one point.
If the dispute also touches who owns the underlying result — as it does in disputes over a contractor's code, see Games and interactive entertainment a contractor claims ownership of — claim construction will not resolve ownership. It only fixes what the claim itself covers.
If the other side files no proposed construction at all, the panel may proceed on your submission alone, though it is not obliged to adopt it in full.
What this page does not cover
This page does not establish where an invention originated, who owns the commercial results tied to it, or how a counterparty to the dispute is organised. Construction only fixes the meaning of claim language; it says nothing about the parties behind the case. For a sense of how that kind of background check is put together, see Counterparty in Belgium in practice.
Related reading
Claim construction often runs alongside evidence work in more than one country. If your dispute spans jurisdictions, see Evidence gathering in two countries step by step.
If you want a sense of how a team handles a matter of this kind day to day, before instructing anyone, read Working with this team in practice.
Next step
If part of your dispute involves rights that survive after a licence has ended, in tokenised form, start with When a licence terminates but the token remains explained. For claim construction itself, the first useful step is to get the disputed terms in front of counsel before any window opens.
Verified
This page was last checked on 5 June 2025. It draws on the forum's published rules of procedure, its practice directions on case management, and publicly available case management orders in claim construction matters. No article numbers or statutory citations are given here, because the national implementing layer for this procedure has not yet been reviewed for this page.
FAQ
How long does claim construction take in practice?
The written stage is the longest part, because both sides need time to prepare a proper reading of each disputed term. The oral hearing itself is short by comparison, and the ruling can follow within a limited period after that.
Which documents are needed to start?
You need the patent as granted, a clear list of which terms are actually disputed, and any technical material that supports your reading of those terms. Counsel will identify gaps once the case management order is issued.
What happens if the other side does not respond?
The panel can proceed on the basis of the submission it has, but it is not bound to accept it in full. Silence from the other side is not the same as agreement with your construction.