What Kreepy Krauly, Siri and AI-assisted drafting teach us about patent claims

For many South Africans, the rivalry between Kreepy Krauly and Baracuda was the swimming pool equivalent of Coke and Pepsi. Throughout the 1980s and 1990s, the two cleaners competed for space in suburban pools, hardware stores and household conversations.

Their rivalry also produced one of South Africa’s best-known patent judgments.

In Selero (Pty) Ltd and Another v Chauvier and Another, the patent claim covering the Kreepy Krauly included the requirement of “two suction passages”. The competing Baracuda cleaner performed much the same broad function, but it did not contain the two passages described in the claim.

The Appellate Division found that the Baracuda did not infringe the patent.

The outcome turned on three apparently ordinary words. They formed part of the legal boundary around the invention and could not be overlooked merely because the competing product achieved a similar result.

Despite this case having nothing to do with artificial intelligence its central principles, nevertheless, remain highly relevant to the use of AI in patent drafting today.

AI can draft words - but claims create boundaries

AI can produce a detailed technical description and claims that look convincingly like those found in a professionally prepared patent specification. The quality of a patent, however, is not measured by how technical or comprehensive the document sounds.

Patent claims define the scope of the monopoly. A feature included in a claim may later become something that every allegedly infringing product must possess for the establishment of infringement. Thus, it follows, that an unnecessary limitation may therefore give a competitor a straightforward way to avoid infringement.

The Kreepy Krauly judgment illustrates the commercial consequences. A competing product may operate in the same market, perform the same task and rely on a broadly similar concept, yet remain outside the patent because one required feature is absent.

AI may be able to suggest alternative wording, but it does not independently determine which features belong in the independent claim, are best kept in the dependent claims, and which may unnecessarily narrow the protection, thereby easing the path to circumvent infringement.

Such choices require a critical understanding of the invention, the prior art, and the manner in which competitors may attempt to design around it.

risks.

AI remains a tool, not the patent strategist

AI can assist patent attorneys and inventors by organising information, generating preliminary descriptions and identifying possible technical variations. Used carefully, it may improve efficiency during parts of the drafting process.

It cannot replace the legal and technical judgment required to decide how the invention should be claimed.

The decisive drafting choices involve more than language. They require an assessment of the inventor’s actual contribution, the existing technology, the likely commercial market and the changes a competitor may make to avoid the claim.

The lesson from Kreepy Krauly still applies in an age of AI-assisted drafting. A patent may contain hundreds of carefully written pages, but its commercial value can ultimately depend on the inclusion or exclusion of a single word and well-placed punctuation.