Application documents: In order to obtain patent protection for an invention, it is necessary to put forward its own requirements to the patent office authorized by the state, and the specific way is to file a patent application. Written documents that the applicant must submit to the Patent Office when applying for a patent (at this stage).
(Priority statement, the request is a procedural document, which has nothing to do with today's topic)
L the role of the application documents:
1) Start the approval process: the application documents are complete, the acceptance notice obtains the application date, and the approval process begins.
2) Disclosure of invention contents: The prerequisite for obtaining patent protection determines this function.
3) Clarify the scope of protection: The specific expression and embodiment of the applicant's interests is the purpose of applying for a patent and should have this effect. specific requirements
4) The original basis of examination: (Article 33) The modification is limited, and the time point of patent judgment is to divide the interests of the public and the applicant fairly.
5) Basis for judging infringement: (Article 26.4, Article 56) After authorization, the description shall be interpreted according to the content of the claim to safeguard the evidence of the patentee's interests.
Conclusion: * Patent application documents are legal documents, which are different from scientific papers and reports. Understanding its function is helpful to understand the characteristics of patent application documents, grasp the principles, grasp the key points and improve the writing quality.
Writing patent application documents is the first step of agency work and the basis of follow-up work.
First, in the process of writing, consider the basic points of the problem: (first of all, we must unify our views)
(1) First of all, we must distinguish between two kinds of inventions: (except in the case of Article 5 and Article 25 of the law)
* But the writing requirements are the same, and this lesson will be collectively referred to as invention.
(2) According to the nature of the technical scheme, it is divided into:
Technical scheme, production method, measurement method, use method and communication method of the activity.
Two. Instruction writing
1. Description is the basic document (Article 33+26 of the Patent Law is comprehensive).
Writing application documents is the basic skill of agency work, and description is the most basic part in the application documents to be written. Four of the five functions of the application documents are related to it: starting the examination and approval procedure, making it fully public, examining the original basis and judging the infringement. Among them, full disclosure is the premise of obtaining the patent right and the main function of the specification. In addition, the applicant's interest expression-claim should be supported by the specification.
All these have established the status of the basic document of the manual.
2. General requirements that the instructions should meet.
Two elements:
Integrity 1) In terms of format (Detailed Rules 18), the five major parts * * * are the same as the full disclosure of the invention content, and are elaborated in two times: an overview of the technical scheme and detailed implementation methods;
2) The substance, not only teaching to understand the complete technical scheme, but also teaching to reproduce the invention (both aspects are indispensable).
Clarity 1) has a clear theme and distinct levels: the article should focus on a theme and draw questions from the background technology. The problem/scheme/effect has a logical relationship, and the problem and scheme echo each other. There is a causal relationship between the scheme and the effect, and it should be developed step by step and at different levels.
2) Accurately use words and terms in narration: standardize words and terms as much as possible, and make up words and definitions for words and terms that have been concluded, clearly explained, little known or emerging in the field, or directly use foreign words (transliteration or free translation of Chinese words). Generally, words with basic meanings in its technical field are not used to express other meaning beyond its original meaning, so as to avoid misunderstanding and semantic confusion. Please note that the understanding order of non-standard terms in this paper is-the interpretation in the specification, the understanding in the field and the definition in the general dictionary.
Implementation and support 1) Paragraph 3 of Article 26 of the Patent Law stipulates: "The description shall give a clear and complete description of the invention or utility model, subject to the realization of the technical personnel in the technical field;" That is to say, the description should be clear and complete, to the extent that ordinary technicians in the field can reproduce the invention after reading the description.
2) Paragraph 4 of Article 26 of the Patent Law stipulates: "The patent claim shall be based on the specification ..." This means that every technical scheme and every technical feature in the patent claim shall be included in the specification (the existing part and the improved part may be different in details).
The above requirements on specifications are referred to as "full disclosure" requirements for short.
1) meets the requirements, < 25 words.
2) Use technical terms commonly used in the technical field (it is best to use technical terms in the International Patent Classification Table), and non-technical names are not allowed;
Such as: pinch the spirit, the old man is happy, and so on. But it can't be understood mechanically, such as pillows, and there is no need to write a headrest for human lying posture.
3) clearly and concisely reflect the themes and types (products and methods) of inventions and utility models, so as to facilitate the classification of patent applications;
4. Attached drawings of the instruction manual
(1) is an integral part of the manual (Chapter 2.3, Part II of the Guide), and each picture should be explained in the manual.
(2) The utility model must have attached drawings.
(3) There are many kinds of drawings-projection, section, perspective, flow chart, program, plane development, disassembly, metallography and structure.
Exception: tables, chemical formulas and mathematical formulas are not attached drawings.
(4) Focus on the schematic diagram (showing the invention points, configuration relationship/process running direction) * instead of the sketch (no photos or printed matter).
(5) Characters in the picture: Principle-Generally, characters are not allowed to be marked unless necessary. Exceptions (curves, process flows, procedures, boxes)
The symbols in the figure should be described one by one in the text part, and the figure number should be Arabic numerals, figure 1.
5. Matters needing attention in writing instructions
Technical field: 1) is not a direct or direct application field; Too specific, defined by distinguishing features; Or too high.
Background: 1) cited a publication, but the information disclosed was incomplete and could not be retrieved;
2) There is no targeted introduction to the technical content; There is derogatory language.
Summary:
The technical problem is too general or does not correspond to the technical scheme.
The technical scheme is lack of specific technical means, pure functional description or incomplete scheme, which cannot be implemented;
Described too many implementation details and recorded unnecessary technical features;
Parallel, further specific technical solutions are not written in sections.
The beneficial effects are lack of experimental data, or no experimental means and conditions are given;
No reasonable conclusion can be drawn from the technical scheme.
Description of drawings: 1) is too detailed, including the description of specific details in the drawings;
2) The attached drawings are not given one by one.
Implementation: 1) The reference number is incorrect;
2) the description of the invention is not enough (for example, when there is no general scheme above, fill-in-the-blank description is used).
3) Lack of technical conditions unknown in this field,
4) Only the cited literature information is given, and the specific technical content is not explained positively.
6. Prepare an explanatory summary
(1) has no legal effect.
(2) A comprehensive introduction to the invention itself (problems to be solved in this field, technical points, advantages and uses)
Format: about 300 words
(3) Attached drawings (in accordance with the principle of Article 24 of the Detailed Rules): reflect the innovation and, if possible, the overall technical scheme.
Writing of claims
Paragraph 4 of Article 26 of the Patent Law and Articles 20-23 of the Detailed Rules stipulate the content and writing of the claim.
Claims consist of claims, and a claim includes at least one claim. The claim expresses the technical scheme of the invention and utility model with the sum of technical features, and defines the protection scope of this patent.
(1) Type of claim
1. According to the nature of claims, it can be divided into product claims and method claims (concept abbreviated).
2. Divided according to the form of claims: independent claims and dependent claims.
I) Independent claim: Reflect the technical scheme of the invention as a whole, and record the necessary technical features needed to solve its technical problems. * Necessary technical features (preface+features), that is, the technical content necessary to complete the invention task and achieve the technical effect, the sum of which is enough to constitute the object of invention protection.
Format: it is divided into continuation part and characteristic part, which is only a formal requirement.
Demarcation: the closest prior art solution guide Part II Chapter 2 3.3. 1
Ii) Dependent claims: include all technical features of another claim, and further define the technical scheme of another claim with additional technical features. * Additional technical features: additional technical features beyond the necessary technical features. Related to technical problems, existing features can be further defined or technical features can be added.
Format: reference parts+additional technical features:
(1) Although it is a matter of form, it is the content of the review/reason for rejection (detail 53).
② Judgment principle "Overall inventive concept" (detail 35) (four-level progressive explanation)
Specific technical features ≠ technical features ≠ necessary technical features
Technically interrelated
The characteristics and differences between independent claims and dependent claims are introduced above.
(2) General requirements for writing claims
1. Substantive requirements
(1) According to the directive: Article 26, paragraph 4, of the Law.
In other words, every claim should be supported by the description. It should be emphasized that the claims are supported not only by the description in the form of expression, but also by the description in essence. (That is to say, the technical scheme required by each claim should be directly deduced or generalized from the contents recorded in the specification by ordinary technicians in this field).
For example, in order to protect technical secrets, some inventions only have names without explanation.
Claims are generally summarized by one or more implementations or examples disclosed in the specification. The summary of the claims should be appropriate, so that the scope of protection just adapts to the contents disclosed in the specification.
(i) The scope of generalization depends on its relevance to the existing technology. Generally, groundbreaking inventions have a wide generalization range (less relevance to the existing technology).
(2) Ordinary technicians in this field can think of the technical scheme summarized in this claim from the examples or implementations recorded in the specification.
For example, the part that is not included in the implementation part can be common sense in this field or the content specified in the textbook.
(iii) Conditions: Method, product: When the structure cannot be clearly expressed, a feature can be used.
For example, a circuit can be described by combining the function of a unit circuit with the direction of signal flow.
(2) specify the scope of protection requested.
(i) The type of claim is clear.
A product invention shall be written as a product claim, which shall be described by the structural features of the product.
A method invention shall be written as a method claim, and described by method features (i.e. technical features such as technological process, operating conditions, steps or flows).
However, some chemical products need to be clearly defined through the preparation process.
(2) The claim shall clearly and correctly describe the invention or utility model. Specifically:
☆ Use words carefully to avoid misunderstanding.
☆ Use technical terms stipulated by the state, not jargon, dialect or self-made words.
☆ Describe the technical features of the invention or utility model positively.
☆ Do not use polysemous words or ambiguous words.
(3) Concise
(i) The wording of the claims should be concise and to the point. In addition to recording technical features, unnecessary descriptions of reasons or reasons are not allowed.
(2) The number of creditor's rights shall be reasonable. An invention or utility model should have only one independent claim. Claims that are just expressed in different words and have exactly the same meaning should be deleted. These are the substantive requirements of the claim.
2. Form requirements
(1) Where multiple claims are included in the claim, they shall be numbered with Arabic numerals. Only a period is allowed at the end of each claim to emphasize that its meaning is an inseparable whole.
(2) There shall be no illustrations. The technical features in the claim can refer to the corresponding reference signs in the attached drawings of the specification, but they must be enclosed in brackets, and these reference signs shall not be interpreted as limiting the protection scope of the claim. In the claims, brackets should be avoided as far as possible except for reference symbols or other necessary circumstances.
(3) If there are several independent claims, the respective dependent claims should be as close as possible to the cited claims.
(4) Multiple dependent claims cannot be quoted by another multiple dependent claims. In addition, when parallel selection is used in the claims, its meaning should be clear (too many parallel selections).
(5) Unless absolutely necessary, similar terms such as "as described in Part …………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………
(6) The technical terms used in the claim shall be consistent with those used in the specification. There can be chemical formula, chemical reaction formula or mathematical formula, and the parameters are explained. In the claims, tables are generally not allowed to be used unless the purpose of the invention or utility model can be clearly stated.
(7) Generally speaking, a claim may not quote a person's name, place name, trade name or trademark name.
For the general requirements of each claim, let's talk about them separately and concretely.
(3) Requirements for writing independent claims
1. Substantive requirements
(i) Further clarify this matter. In addition to clear types and clear description of technical features, the following points should be noted:
(1) The technical features mentioned in the preamble must also be the technical features of the invention or utility model;
(b) The same technical feature shall not be described repeatedly in the preface and the feature part (description at the same level);
(c) The technical features further described in the feature part should be organically combined with the previous part.
That is to say, as far as possible from the preface of * * * with characteristics to explain;
(d) The product independent claim shall not only list the components or structures of the product, but also describe the positional relationship or interaction relationship between the components or structures.
2. Provisions on writing format
(i) Generally speaking, it is divided into two sections:
Preamble+characteristic part (Article 22 1)
The title of the technical scheme of the invention or utility model to be protected and the necessary technical features of the theme of the invention or utility model which is closest to the existing technology shall be clearly stated;
Characteristic part: Use "characterized by" or similar words to express the technical characteristics of the invention or utility model that are different from the nearest existing technology. These features, together with the features of the preamble, define the protection scope of the invention or utility model.
This writing not only clearly explains the relationship between the invention or utility model and the existing technology, but also emphasizes its own essence.
Compared with the independent claim which is not divided into two parts, it has the following advantages:
(a) to help examiners understand the essence of the invention or utility model and its relationship with the recent existing technology, so as to speed up the actual examination procedure;
(b) It is convenient for the public to understand its essence and its relationship with the nearest existing technology, so as to facilitate the signing of patent licensing trade contracts and the determination of royalties;
(c) It is convenient for the public to understand its essence and its relationship with the latest existing technology, and provide more and more accurate information for those opponents who have a direct interest in the patented technology to decide whether to file a request for invalidation of the patent right after authorization.
(d) To some extent, it can make the independent claim more concise.
(ii) Some situations do not apply to two-paragraph writing.
(1) Pioneering inventions, utility model inventions or chemical substance inventions;
(b) A combined invention consisting of several known technologies that play an important role in the invention itself, whose invention lies in the combination itself;
(c) Method improvement invention, the improvement only lies in omitting a certain step in the prior art, or changing the sequence of steps, or omitting substances or materials used in a certain step and the like;
(d) Product improvement invention, the improvement only lies in omitting a part of the prior art, or omitting one of the known components and the like.
(3) the writing format of parallel independent claims
(a) Independent claims of the same type are usually written in the same format as the first independent claim.
(b) Different types of parallel independent claims, two methods:
☆ Return to the claim 1 (including the previous parallel independent claim)
☆ Claim 1 was not quoted back, but was clearly described by the technical features in Claim 1.
From the point of view of conciseness, the former is usually adopted. It is usually divided into preface and characteristic parts.
(4) Requirements for writing subordinate claims
1. Substantive requirements
(1) As a part of the claim, the subordinate claim shall also clearly describe the invention or utility model.
In addition to what is pointed out in the above substantive claim (2), the following points should also be noted:
(i) When additional technical features further restrict the cited claim, it shall be interpreted from the technical features of the cited claim as far as possible;
(ii) When the additional technical features are added technical features, the structural positional relationship or functional relationship between these additional technical features and one or more technical features in the cited claim shall be clearly stated;
(3) The technical features in the claims that are not allowed to be quoted repeatedly in the limited part, so as not to cause a wrong statement on the scope of protection;
(4) The reference relationship of the dependent claims shall be correct;
(5) The technical scheme of the dependent claim shall be complete.
(2) The type and subject name of the dependent claim shall be consistent with the type and subject name of the cited claim.
(3) The scope of protection of dependent claims is a further definition of the scope of protection of cited claims, and the scope of protection should fall within the scope of protection of cited claims.
2. Provisions on writing format
Quoted part+qualified part (Article 23, paragraph 1 of the Detailed Rules for the Implementation of the Patent Law)
Citation part: indicate the number of the cited claim and its subject name.
Limited part: specify the additional technical features of the invention or utility model.
* multiple dependent claims and multiple dependent claims
A) Dependent claims can refer to previous independent claims or previous dependent claims, which are called multiple dependent claims.
B) A subordinate claim can refer to one prior claim or two or more prior claims, and the latter is called multiple subordinate claims.
3. Form requirements
(1) Dependent claims can only refer to the preceding claims, but not the following claims;
(2) Multiple dependent claims can only selectively refer to the previous claim, that is, only "or" and its equivalents can be used, but "and" and its equivalents cannot be used;
(iii) Multiple dependent claims shall not be used as the basis of another multiple dependent claim;
(six) the main problems in the claim
1. Claim does not clearly and correctly describe the invention or utility model, or express its scope of protection.
(1) The claim type is not clear;
(2) The product claim only lists the names of the components, but does not give their specific structures, relative positions or interactions;
(3) the same technical feature is repeatedly described before and after, which makes the claim unable to clearly and correctly define the invention or utility model;
(4) The words used are not exact, and the invention or utility model is not clearly described;
(5) Using negative words to expand the scope of protection;
(6) Parentheses appear in the claim, which easily leads to the uncertainty of the protection scope of the claim;
(7) Only relying on reference marks to further define technical features will also lead to unclear protection scope of claims;
(8) The mathematical formula or chemical structural formula in the claim does not explain the meaning of the parameter or give the value range of the parameter;
(9) In the same claim, there are two options: specific scheme and preferred scheme;
(10) The protection scope of the dependent claim does not belong to the protection scope of the independent claim directly or indirectly cited by it;
(1 1) The technical scheme of the dependent claim is different from the subject name of the technical scheme of the cited claim;
(12) The additional technical features of the dependent claims are not defined from the technical features of the cited claims, and the relationship between the additional technical features and the technical features of the cited claims is not given;
(13) Improper citation of subordinate claims leads to unclear protection scope;
(14) The technical scheme further defined in the dependent claim is incomplete, and the scope of protection is not clearly stated.
2. The independent claim does not reflect the difference with the prior art, and the main content of the described invention or utility model lacks novelty and creativity compared with the prior art. ..
(1) The independent claim as a whole does not reflect the difference with the existing technology or novelty and creativity;
(2) Write the technical features reflecting the essential content of the invention or utility model into the preamble of the independent claim, and only keep the common sense familiar to those skilled in the technical field.
3. The independent claim does not reflect the technical scheme of the invention or utility model as a whole, and records the necessary technical features to solve its technical problems.
(1) The independent claim does not record all the necessary technical features to solve the technical problems of the invention or utility model;
(2) the independent claim contains unnecessary technical features or is limited to the specific implementation of the invention or utility model, which makes the protection scope of the invention or utility model too narrow; (From the review point of view, according to the principle of request, this problem does not need to be pointed out when it exists. )
The claim is not based on the specification.
(1) The protection scope of the claim is not compatible with the contents disclosed in the specification;
(2) The scope of protection expressed in the claim is inappropriate and cannot be naturally and reasonably derived from what is described in the specification;
(3) The invention or utility model in the specific application field is not defined in the claim;
(4) The technical scheme in the claim is not reflected in the specific implementation described in the specification.
5. Several independent claims do not belong to a general inventive concept, and do not satisfy the oneness.
(1) Although the product independent claims of several inventions or utility models submitted in the joint application improve the same part of the product, there are no identical or corresponding specific technical features that contribute to the prior art;
(2) Several independent claims describing different inventions in the same application are related to each other in form, but there are no identical or corresponding specific technical features that contribute to the prior art in essence.
6. Writing of parallel independent claims: ① Basic format: invention-by-invention/centralized writing/overall numbering; (2) Two forms of order: the same species but different species.
7. Logical relationship between dependent claim and its reference part
(1) Protection scope of dependent claims
(2) The same additional defining features are attached to different reference parts-different positions and different ranges.
(3) It is reasonable to choose one of multiple subordinate references, and it can only be "OR".
(4) Limitation of citation of multiple dependent claims (Details 23)
8. Two ways to write the circuit features in the claims: ① write them naturally; ② Tracking signal
9. Matters needing attention in writing claim (book)
(1) A claim involves only one technical subject. Example "1. A method for manufacturing MOS devices with multiple doped regions and its installation …
(2) It is not appropriate to combine the special case and the general scheme in the same claim. Examples: "Not made of metal material", "Waveform other than sine wave" and "Handle can be made of ……………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………… Summary of patent examination.
1. Two review processes
(1) Examination of invention patent application: preliminary examination+substantive examination.
Process (simplified) application-open/submitted for review (active change within three years)-(agree/refute) announcement-(cancel) invalid.
(2) Examination of an application for a patent for utility model: preliminary examination (Article 44 of the Detailed Rules)
Process (simplified) application (voluntary change within three months)-(approval/rejection) announcement-(cancellation)-invalid.
2. The principle of "three natures"
(l) novelty judgment
* Existing technologies (time, region, three) and conflicting applications (five elements)
Relative novelty (relative time, relative region)
Absolute comparison: a scheme is compared separately.
Consider (field, purpose, effect) in an all-round way.
(2) Creative judgment
① The main points of the 22 standards in the Patent Law are: there are substantial differences and progress, and attention is paid to the technical effect of the scheme.
(2) Comprehensive comparison-the wider the existing technology involved, the more conducive to the establishment of creativity.
(3) Reference standard-the combination of inventions to overcome prejudice.
(3) Practicality in the sense of patent law (scientific repeatability and positive effect).
5. The applicant/agent's reply to the notice of examination opinions
(1) reply mode
① Content-Statement+Modification
Reply document: opinion statement+revised text (replacement page/errata) (Rule 52) A suggested way.
Basic format: two parts (revision and statement) are aimed at the final text statement.
(2) Legal basis for amendment-basic principles (Article 33, Detailed Rules 53-Reasons for Rejection of the Law)
The revision of documents runs through the whole process of patent application and examination.
③ Active modification: (Detailed Rules 5 1 Invention)
Invention: 3 months from the date of submitting the actual trial/entering the actual trial procedure; New type: within 2 months after application.
Passive correction: * About "obvious mistakes"-comprehensive judgment+only correcting possibility/spelling, punctuation and typos.
(4) Revision of the appended drawings: first trial: Article 4 1 of the Detailed Rules; Actual review: the annotation text is moved into the manual, with consistent marks and local enlargement.
(2) Permissibility/impermissibility modification
① Description: Adaptive modification * Deleted the "Supplementary Description of the Content of the Claim".
② Claim: the scope of protection can only be reduced in the actual trial stage (combined with detailed rules 5 1) (investigation stage and post-procedure).
When the claims are recombined to form a new technical case, they cannot be matched at will. Consider the support of the instructions.
Steps to write a claim
1. Main steps of writing a claim
Generally speaking, the writing of claims can be carried out according to the following steps:
(1) On the basis of understanding inventions and utility models, find out their main technical features and clarify the relationship between technical features;
(2) according to the existing technology of retrieval and investigation, determine the comparison document closest to the invention or utility model;
(3) according to the closest comparison document, further determine the technical problems solved by the invention or utility model, and list all necessary technical features that the invention or utility model must include to solve the technical problems;
(4) Write the necessary technical features that are the same as the closest prior art into the preface part of the independent claim, and write the necessary technical features of the invention or utility model that are different from the closest prior art into the feature part to complete the writing of the independent claim;
(5) Analyze other additional technical features, and use those additional technical features that will contribute to the creativity of the application to write corresponding subordinate claims.
Two problems that should be paid attention to in writing:
(1) Try to write an independent claim with a wide range of protection. When writing, don't be limited to the specific embodiment of the invention or utility model, but try to express the technical characteristics with a general description.
(2) In order to increase the possibility of obtaining a patent by applying for a patent, which is more conducive to maintaining the patent right after the patent is approved, the dependent claims should be written according to different specific embodiments, and the defense reasons should be hierarchical.
This paper illustrates how to write a claim according to the above five steps with a specific example (electroprobe).
2. Writing with independent claims
(1) Parallel independent claims of similar products or methods
When writing parallel independent claims of similar method inventions, similar product inventions or utility models, it must be reflected that the technical scheme and independent claims have the same inventive concept, that is, they should contain the same or corresponding specific technical features.
Take the electric pen and the new two-phase three-pin plug socket as examples to illustrate.
(2) Parallel independent claims of different kinds of inventions
In order to show that the parallel independent claim and the first independent claim have corresponding specific technical features, the characteristic part of the parallel independent claim should be technically related to the technical scheme of the first independent claim, and its distinguishing technical features usually depend on the distinguishing technical features of the first independent claim.
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