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The Hand Test Revisited

Most patent attorneys at some point in their career will have been introduced to the “Hand Test”.  This is a rule of thumb (well, four fingers and a thumb) test to determine whether a claim is useful.  There are various versions, but a familiar one is for Claim 1 of a patent to be printed out – for the sake of argument and objectivity, let’s say in 12 point Times Roman with one-and-a-half spacing – and for a patent attorney (let’s say one taking size 8 in gloves) to try to cover it with their hand laid flat, with fingers together, on the paper over the printed claim.  If there are lines of text showing above or below the hand, the claim is generally not infringed by the embodiment of interest, avoidable by one simple workaround or another, or simply impossible to infringe.

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