The advantage of the claim-restatement type of Summary is, moreover, largely theoretical. Only a tiny percentage of patents are ever involved in litigation. Even a smaller number are subjected to a claim-narrowing interpretation based on language in the Summary.
Furthermore, although claims are usually amended during prosecution, practitioners rarely amend the Summary, and so the Summary in the issued patent typically does not jibe with the issued claims anyway.4
By contrast, a much larger percentage of patents are the subject of licensing negotiations. A Summary that effectively explains what the invention is goes a long way toward showing the would-be licensee that he is not being asked to pay something for nothing. It helps smooth the way toward a successful deal-closing, particularly if a business executive is involved in the negotiations. A story-telling Summary is something he can understand. “Are we doing this? ” he may ask his people, “And, if so, why are we fighting this?”
A patent whose Summary makes the invention clear is less likely to get into litigation because the Opposing Team is more likely to agree (at least among themselves) that their product implements the inventor’s teachings. They are also more likely to conclude that the judge and jury will see it that way as well.
This is not to negate the concern that informs some practitioners’ preference for a claim-restatement type of Summary. We certainly do not want claimed subject matter to be limited by embodiment details contained in the Summary but not contained in the claim being asserted. But the claim-restatement type of Summary throws out the baby with the bath water. One gives up a lot by forgoing the advantages that flow from a well-thought-out story- telling type of Summary to address a speculative and infrequent litigation contingency.
It is possible, in any event, to address that contingency and still employ the story- telling type of Summary by writing the Summary carefully and thoughtfully, observing such guidelines as: