Paragraph 1 of Article 59 of the Patent Law stipulates that the scope of protection of the patent right for invention or utility model shall be subject to the content of the claim, and the content of the claim may be explained by the specification and drawings. Therefore, patent claims are the basis for determining the scope of patent protection, and also the basis for judging whether others infringe.
Creditor's rights and creditor's rights are two different concepts, which cannot be confused, let alone simply equated. Patent claim is an important document written by the patent applicant to obtain the patent right and submitted to the patent management department. A claim refers to the specific technical features recorded in a claim, and one claim can contain multiple claims. Claim is the carrier of claim.
After the patent application is authorized, the claim is the basis for limiting the scope of patent protection, and its generalization of the patent is closely related to the size of the scope of patent protection. In order to fully protect the interests of the applicant, the claim should be able to seek the maximum possible scope of protection.
Generally speaking, the more the number of claims, the greater the scope of patent protection, indicating that the higher the originality of patents, the higher the quality of patents, and the higher the frequency of infringement and litigation.
Second, the writing of patent application claims
There are many ways to write claims, which should be adapted to the contents of technical disclosure materials.
1. Exclude topics that obviously cannot be protected by patents before writing.
Before writing, we should first exclude topics that do not conform to the definition of invention or utility model in Article 2 of the Patent Law, which obviously belong to the object of Article 5 or Article 25 of the Patent Law, and which obviously do not conform to the practical provisions of Paragraph 4 of Article 22 of the Patent Law.
2. Writing requirements
(1) Claims shall include independent claims and subordinate claims (Article 20, Paragraph 1 of the Detailed Rules for the Implementation of the Patent Law).
(2) An independent claim shall meet the following requirements: it has a wide range of protection under a reasonable premise and can maximize the interests of the applicant; Clearly and concisely define its scope of protection (Paragraph 4 of Article 26 of the Patent Law); Record all necessary technical features for solving technical problems (Paragraph 2 of Article 20 of the Detailed Rules for the Implementation of the Patent Law); Being novel and creative with the existing technology (Paragraph 2 and Paragraph 3 of Article 22 of the Patent Law); Comply with other provisions of the patent law and the detailed rules for the implementation of the patent law on independent claims.
(3) Dependent claims shall meet the following requirements: the number of dependent claims is appropriate and reasonable; It has a clear logical relationship with the cited claim (Paragraph 4 of Article 26 of the Patent Law and Article 22 of the Detailed Rules for the Implementation of the Patent Law); When faced with the situation that the protection scope of the right claim has to be reduced after authorization, it can provide sufficient modification space; Comply with other provisions of the patent law and the detailed rules for the implementation of the patent law on subordinate claims.
(4) Where multiple independent claims are written, the multiple independent claims shall be single.
3. How to write the claim
(1) The summary writing method is not considered.
The core task of writing is to find the distinctive technical features in the technical disclosure materials, and to write patent claims around the distinctive technical features, with the distinctive technical features that play a fundamental and fundamental role as the invention point. If there is only one embodiment of the technical disclosure material of the invention, it is generally unnecessary to consider the generalization of the embodiment.
1) does not require an overview of multiple embodiments.
In the following cases, it is generally unnecessary to summarize several embodiments involving the same technical content: if the technical disclosure materials only give the situation of the next embodiment of a technical theme, they are generally not summarized according to the upper level or function; If multiple embodiments are given in the technical publication, but there is a master-slave relationship between multiple embodiments, for products with basic structure (not summarized), independent claims can be written, and products with other structures can be written as subordinate claims of independent claims; If the way of upper-level or functional generalization is explicitly given in the published materials, it is not necessary to consider the generalization of multiple embodiments.
2) Writing steps without summarizing the claims.
For ideas that don't need to be summarized, write them through the following six steps:
The first step: technical characteristics analysis. The first step of technical feature analysis includes two aspects: listing all technical features; Analyze the logical relationship between technical features.
Step 2: Find an invention point. There are two aspects in the process of discovery and invention: technical comparison to find out different technical characteristics; Determine the invention points that distinguish technical features.
Step 3: Determine the technical problems to be solved. Step 3, according to the technical effects generated by the invention points determined in step 2, and compared with the closest prior art, the technical problems to be solved by the invention are determined.
Step 4: Determine the necessary technical features. The essential technical features are the essential features to solve the most fundamental technical problems, and the essential features of actual products are not necessarily the essential technical features.
Step 5: Write an independent opinion. On the basis of determining the necessary technical features in the fourth step, the writing of the independent claim is completed. The writing of independent claims is divided into two aspects: determining the subject name. Subject names are generally limited to the names of products or methods provided by technical disclosure materials, and generally do not need to be summarized. Pay attention to avoid the characteristics in the subject name; Adjust the necessary technical features in language. Combine the necessary technical features determined in the fourth step, compare it with the closest existing technology, and write its necessary technical features in the preface of the independent claim, and write the necessary technical features different from the closest existing technology in the feature part.
Step 6: Write the dependent claims. Analyze other additional technical features, and write the additional technical features that contribute to the creativity of the application into the corresponding dependent claims. If the number of dependent claims is small, the features of the prior art can also be written into the dependent claims.
(2) Summary writing mode of multiple embodiments
If there are more than two embodiments of the invention, its generality should be summarized in one claim as far as possible.
1) Many embodiments require general judgment.
For product claims with different structures, when writing claims, we should first analyze the relationship between products with different structures:
The improvement of many embodiments is the master-slave relationship;
Many embodiments are parallel improvements, and the improvement schemes have the same idea. A. several embodiments can be summarized. If these products with different structures are juxtaposed and meet the requirements of oneness, the technical characteristics of these products with different structures should be described as much as possible in the way of generalization (upper generalization or functional generalization), so that these products with different structures can be included in the independent claims; On this basis, according to the differences between these products with different structures, corresponding subordinate claims are written respectively; B. Many embodiments cannot be generalized, and independent claims can be written for these products with different structures:
Many embodiments are improved in parallel, and there is no singularity between the improvement schemes. If several products with different structures are parallel technical solutions, which do not belong to a general inventive concept, they can only be written in two patent applications as independent claims respectively.
2) The writing steps of the claims that need to be summarized.
For the idea that needs to be summarized, it is still written in the six-step method mentioned above. When determining the necessary technical features in step 4, it is necessary to summarize the similarities of several embodiments.
There are more than two parallel embodiments of the invention, which can be summarized as follows: function generalization, using the generalization method of functional devices/components/structures; Function generalization, but no component name, but the specific structure is directly replaced by function; Superior generalization, taking the superior name of the component instead of the specific component; Superordinate generalization, without superordinate name, is expressed by omitting specific structure.
(3) The writing method of juxtaposing invention points
If there are two or more basic distinguishing features, it is a parallel invention.
1) invention point juxtaposition. When the following situations occur, it is necessary to consider the arrangement of independent claims of parallel inventions: the technical disclosure clearly gives several fundamental technical problems to be solved by the invention, which are parallel, independent or master-slave relations, and there is no same idea between embodiments; Although there is only one fundamental technical problem to be solved in the technical disclosure materials, there are many embodiments, which do not have the same idea and cannot be summarized, and it is not single to write multiple parallel independent claims.
2) The layout of the parallel invention points. There are many inventions in the technical disclosure materials. First of all, in the first patent application, the technical contents given in the technical disclosure materials should be written into the claims. At this time, the second invention can be written as a dependent claim. However, in order to fully protect the invention, it is necessary to write another independent claim and its corresponding subordinate claim for the second invention, and suggest that the client submit another patent application on the same day.
3) Writing steps. The writing of parallel invention points is basically the same as the 6-step method introduced earlier, except that there is an additional step 7. When two or more parallel invention points are found when determining the invention point in the second step, in the fifth step, an independent claim is written with the first invention point as the core. Step 7, write the first independent claim with the second invention as the core.
The above is related to the patent application right. If you have any other questions, you can consult Intellectual Property for a detailed understanding.