1. Overview of patent application claims
Article 59, paragraph 1, of the "Patent Law" stipulates: The scope of protection of invention or utility model patent rights shall be determined by the content of the claims. The description and drawings may be used to explain the content of the claims. Therefore, the claims are the basis for determining the scope of patent protection and the basis for determining whether others have infringed the patent.
The claims and claims are two different concepts and cannot be confused, let alone simply equated. Claims are an important document written by a patent applicant and submitted to the patent administration department in order to obtain patent rights. Claims refer to the specific technical features recorded in the claims, and one claim can contain multiple claims. Claims are the carrier of claims.
After a patent application is authorized, the claims are used as the basis to limit the scope of patent protection. The degree of summary 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 claims should be able to seek the largest possible scope of protection.
Generally speaking, the greater the number of claims, the greater the scope of protection of the patent, which means the higher the originality of the patent, the higher the quality of the patent, and the higher the frequency of infringement and litigation.
2. Drafting of patent application claims
There are many ways to draft claims, which should be consistent with the content of technical disclosure materials
1. Before writing, exclude topics that are obviously not eligible for patent protection
Before writing, you must first exclude topics that do not meet the definition of invention or utility model in Article 2 of the Patent Law, and exclude topics that are clearly within the scope of the Patent Law. Objects that cannot be patented under Article 5 or 25 of the Patent Law exclude subjects that are obviously inconsistent with the practical provisions of Article 22, paragraph 4, of the Patent Law.
2. Drafting requirements
(1) The claims should include independent claims and dependent claims (Article 20, paragraph 1, of the Implementing Rules of the Patent Law).
(2) The independent claim should meet the following requirements: have a broad scope of protection under reasonable premise and be able to reflect the applicant’s interests to the maximum extent; clearly and concisely limit its scope of protection (" Article 26, Paragraph 4 of the Patent Law); record all necessary technical features to solve technical problems (Article 20, Paragraph 2 of the Implementing Rules of the Patent Law); possess novelty and creativity with respect to existing technology (Article 2 of the Patent Law Implementing Rules) Article 22, paragraphs 2 and 3); complies with other provisions of the Patent Law and the Implementing Rules of the Patent Law regarding independent claims.
(3) Dependent claims should meet the following requirements: the number of dependent claims is appropriate and reasonable; there is a clear logical relationship with the cited claims (Patent Law, Article 26, Section 4 Article 22 of the "Patent Law Implementing Rules"); when faced with the situation of having to narrow the scope of protection of a claim after authorization, it can provide sufficient room for modification; consistent with the "Patent Law" and the "Patent Law Implementing Rules" on subsidiary rights Other provisions required.
(4) If multiple independent claims are drafted, the multiple independent claims should be unitary.
3. Way of writing claims
(1) Way of writing without considering generalization
The core task of writing is to find the distinguishing technology in the technical disclosure materials Features, and write claims around the distinguishing technical features, taking the distinguishing technical features that play a basic and fundamental role as the point of invention. If the technical explanation material has only one embodiment for the invention, generally there is no need to consider the summary of the embodiment.
1) Situations where it is not necessary to summarize multiple embodiments
In the following situations, it is generally not necessary to summarize several embodiments involving the same technical content: if the technical disclosure materials When only one embodiment under a technical subject is given, general generalizations or functional generalizations are not made; if the technical disclosure material gives multiple embodiments, but the master-slave relationship between the multiple embodiments, An independent claim can be written for the basic structure product (no generalization is required), and the products with several other structures can be written as dependent claims of the independent claim; if the disclosure materials clearly provide a superior or functional generalization method, There is also no need to consider generalization issues across multiple embodiments.
2) Steps for writing when claims do not need to be summarized
For claims that do not need to be summarized, follow the following 6 steps to write:
Part 1 Step one: analysis of technical characteristics. The first step of technical feature analysis includes two aspects: listing all technical features; and analyzing the logical relationship between technical features.
Step 2: Find the point of invention. The steps to find the point of invention include two aspects: technical comparison to find out the distinguishing technical features; and determining the point of invention among the distinguishing technical features.
Step 3: Determine the technical problem to be solved. In the third step, the technical problem to be solved by the invention should be determined based on the technical effect produced by the invention point determined in the second step and compared with the closest existing technology.
Step 4: Determine the necessary technical characteristics. Necessary technical features are features that are indispensable for solving the most fundamental technical problems. Features that are indispensable for actual products are not necessarily necessary technical features.
Step 5: Write independent claims. On the basis of determining the necessary technical features in the fourth step, complete the writing of independent claims. The writing of independent claims is divided into two aspects: determining the subject name. The topic name is generally limited to the name of the product or method provided in the technical communication materials, and the topic name generally does not need to be summarized. Be careful not to have distinguishing features in the topic name; adjust the language for necessary technical features. Combine the necessary technical features determined in the fourth step, compare them with the closest prior art, and write their most identical necessary technical features into the preamble of the independent claim, distinguishing it from the closest prior art. Necessary technical characteristics are written in the characteristics section.
Step 6: Write dependent rights claims. Analyze other additional technical features and write those additional technical features that will contribute to the inventive step of the application into corresponding dependent claims. If the number of dependent claims is not large, features of the prior art may also be included in the dependent claims.
(2) How to summarize multiple embodiments
If there are more than two embodiments for the invention, try to summarize them in one claim Make generalizations.
1) Multiple embodiments require general judgment
For product claims with multiple different structures, when drafting the claims, you should first analyze the characteristics of these different structures. Relationship between products:
There is a master-slave relationship between the improvements of multiple embodiments;
Multiple embodiments are parallel improvements, and each improvement plan has the same concept. . a. Multiple embodiments can be generalized. If these products with different structures are parallel technical solutions that meet the requirements of unity, the technical features of these products with different structures should be described in a general way (high-level generalization or functional generalization) as much as possible, so that these products can be described together. Products with different structures are included in the independent claims; on this basis, corresponding dependent claims are written based on the differences between these products with different structures; b. Multiple embodiments cannot be summarized, and these products with different structures can be separately addressed. Writing independent product claims:
Multiple embodiments are parallel improvements, and there is no unity among the improvement solutions. If several products with different structures are parallel technical solutions and do not belong to the same general inventive concept, they can only be written as independent claims in two patent applications.
2) Steps for writing claims that need to be summarized
For claims that need to be summarized, still use the 6-step method introduced earlier, and determine the necessary technical features in step 4 When doing so, it is necessary to summarize the most common points among multiple embodiments.
For inventions that have two or more parallel embodiments, they can be summarized in the following ways: functional summary, which adopts the summary method of devices/components/structures with the functions; functional summary, but does not When the component name appears, the specific structure is directly replaced by function; when superordinate summary is used, the superordinate name of the component is used to replace the specific component; when the superordinate name does not appear, the specific structure is omitted.
(3) How to write parallel invention points
If there are two or more fundamental distinguishing features, it is a parallel invention point.
1) Judgment of parallel invention points. When the following situations occur, it is necessary to consider the layout of independent claims for parallel inventions: the technical disclosure materials clearly provide multiple most fundamental technical problems to be solved by the invention, and the multiple fundamental technical problems are parallel, independent or independent. There is a master-slave relationship, and the implementation methods do not have the same concept; although there is only one most fundamental technical problem to be solved in the technical briefing materials, there are multiple implementation methods, and the multiple implementation methods do not have the same concept and cannot be generalized. , written as multiple parallel independent claims without unity.
2) The layout of parallel invention points. For the writing of technical briefing materials with multiple invention points, first of all, in the first patent application, the technical content given in the technical briefing materials must be written into the claims. At this time, the second invention may be written as a dependent claim. However, in order to fully protect the invention, it is necessary to draft another independent claim and its corresponding dependent claims for the second invention point, and it is recommended that the client file a separate 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 for one more step 7. When it is found that there are two or more parallel invention points in the second step of determining the invention point, in the fifth step of drafting the independent claim, the independent claim should first be drafted with the first invention point as the core. In step 7, write the first independent claim with the second invention point as the core
The above is the relevant content about the patent application rights requirements. If you have other questions, you can consult the intellectual property rights. Learn more.