A decade-long battle over an anti-scaling method for the Bayer process has just delivered a sharp reminder that patent claims are commercial instruments, not afterthoughts. In Nalco Company v Cytec Industries Inc [2026] FCAFC 72, the Full Federal Court upheld findings that Nalco’s original claims failed the post-Raising the Bar support and sufficiency thresholds — because the language admitted within its scope a composition the specification never taught how to make.

The phrase “at least one small molecule” looked innocuous on the page. In practice, it stretched the monopoly beyond what the technical contribution could justify, and no amount of expert evidence about statistical improbability could rescue it. The Court was clear: low probability of an embodiment is not the same as exclusion, and the words a patentee chooses will be given work to do.

The strategic lesson runs deeper than drafting hygiene. Nalco eventually secured its amendments on appeal — but only after years of litigation, six amendment rounds, and a Full Court willing to exercise the s 105(1A) discretion afresh. That outcome turned on disciplined conduct: timely amendments, full and frank disclosure, and a credible narrative that each iteration responded to issues as they crystallised rather than to risks long known and ignored.

For IP-intensive businesses, three patterns are worth internalising.

First, the post-RTB regime rewards claim scope that maps tightly to what the specification actually enables — aspirational breadth is now a liability, not an option.

Second, opposition and appeal strategy should include pre-built fallback claim sets, stress-tested against the construction arguments your opponent is most likely to run.

Third, the discretion to amend remains genuinely available where the patentee behaves transparently — but culpable delay, tactical obscurity, or knowingly maintaining overbroad claims will close that door.

The patent bargain is being enforced more strictly than it once was; the businesses that treat claim drafting as a strategic exercise — not a downstream task — will be the ones still holding their monopolies when challenges come.

Read the full judgment here.