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Determination of the scope of protection of the patent involved in the case
1. Determination of the scope of protection of invention and utility model patents
(1) Determining the objects of interpretation of the scope of protection
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1. The scope of protection of an invention or utility model patent shall be based on the content of the claims. The description and drawings may be used to explain the claims. However, the content of the description and drawings cannot be introduced into the claims.
2. The independent patent claim reflects the technical solution of the invention or utility model patent as a whole, records the necessary technical features to solve the technical problem, and has the largest scope of protection compared with the dependent claims. Therefore, when determining the scope of patent protection, the independent claim of the patent with the largest scope of protection should be interpreted.
3. A patent sometimes has more than two independent claims. According to the patent infringement lawsuit filed by the right holder, only the scope of protection determined by the independent claims shall be explained.
4. If the right holder sues the defendant for infringement based on the patent’s dependent claims, the court may also interpret and define the scope of protection of the dependent claims.
(2) Interpretation principles for determining the scope of protection
5. Principle of validity of patent rights. The plaintiff's request for protection must be a valid patent right protected by patent law. It is not an invention that has expired, been revoked by the China Patent Office, declared invalid by the Patent Reexamination Board, or abandoned by the patentee.
6. The principle of determining the scope of protection of patent rights should be based on the content of the claims. The principle of compromise interpretation should be adopted when interpreting claims based on the description and drawings. It is necessary to avoid the principle of "peripheral limitation", that is, the protection scope of the patent is completely consistent with the protection scope recorded in the claims, and the description and drawings can only be used to clarify certain ambiguities in the claims; it is also necessary to avoid the use of The principle of "center limitation" means that the claim only determines a general core of the invention, and the scope of protection can be extended to the scope of protection requested by the patentee after technical experts have read the description and drawings. The compromise interpretation should be in the middle of the above two extreme interpretation principles, and should combine the reasonable and legitimate protection of the patentee with the legal stability of the public and its reasonable interests.
7. The principle of treating the technical content recorded in the patent claims as a complete technical solution. That is to say, the technical content expressed by all the technical features recorded in the independent claims of the patent should be viewed as a whole. The technical features recorded in the preamble and the technical features recorded in the characteristic part have the same effect in defining the scope of patent protection.
8. When interpreting patent claims, the technical content recorded in the patent claims should prevail, rather than the text or wording of the claims. The technical content shall be determined by referring to and studying the description and drawings, and taking into full consideration the technical field of the invention or utility model, the known technology, technical solutions, functions and effects before the filing date.
9. The interpretation of patent claims should follow the principle of fairness. It is necessary to fully consider the contribution made by the patentee to the existing technology, reasonably determine the scope of patent protection, protect the rights and interests of the patentee, and not infringe the rights and interests of the patentee. public interest. Publicly known technology should not be "interpreted" as the scope of protection of patent rights, nor should patented technology be "interpreted" as public technology.
(3) Interpretation method for determining the scope of protection
10. When determining the scope of patent protection, the text of the patent claims finally announced by the national authorization authority or the text of the patent claims that has become legally effective shall be used to determine the scope of protection. The text of the patent claims determined by the reexamination decision, revocation decision, and invalidation decision shall prevail.
11. The patent specification and drawings can be used to fairly expand or reduce the scope of protection of the technical solution limited by the literal meaning of the patent claim, that is, to interpret features that are equivalent to necessary technical features to The scope of patent protection may be limited to certain necessary technical features by the patent specification and drawings.
12. If the independent claims of a patent are inconsistent or contradictory with the patent description, the patent does not comply with the provisions of Article 26, paragraph 4, of the Patent Law, and the parties concerned shall resolve the matter through patent invalidation procedures.
If the parties are unwilling to solve the problem through invalidation procedures, the court should based on the principles of patent validity and priority of patent claims, and the scope of protection defined by the patent claims, rather than the content disclosed in the description or drawings. "Correct" the technical content recorded in the patent claims.
13. When there is any ambiguity in the technical features recorded in the independent claim of the patent, it can be clarified by combining the dependent claims or the description and drawings.
14. If the dependent claim contains technical features that should be recorded in the independent claim and are essential for solving the technical problem of the invention (in the absence of such technical features, the technical solution recorded in the independent claim is incomplete), the patent does not comply with the provisions of Article 21, paragraph 2, of the Implementing Regulations of the Patent Law. The parties may resolve the issue through patent invalidation proceedings.
If the parties are unwilling to resolve the issue through invalidation procedures, the court may, in accordance with the principle of party request, limit the scope of patent protection with corresponding subordinate claims when determining the scope of patent protection.
15. Technical solutions that are only recorded in the patent description and drawings but not reflected in the patent claims cannot be included in the scope of patent protection. That is to say, the scope of protection of patent rights cannot be determined based on the description and drawings.
(1) If a technical solution is fully disclosed in the patent specification and has specific description and embodiment, but is not recorded in the claims, it should be deemed that the technical solution is not covered by the patent. Within the scope of protection, it is not allowed to be included in the scope of patent protection when interpreting patent claims.
(2) If the technical content recorded in the patent claim is not the same as the description or embodiment in the patent specification, the description in the patent claim shall take precedence, and the technical content recorded in the specification and drawings shall not be used. The content “corrects” what is stated in the patent claims.
(3) If the scope of the technical content disclosed in the patent description and drawings is wide, but the scope of protection requested in the patent claims is narrow, in principle, the patent can only be determined based on the technical content in the claims. scope of rights protection.
16. If the independent claim of the patent and its dependent claims lack the necessary technical features to solve the technical problems of the invention or utility model, and the necessary technical features are only disclosed in the patent specification or drawings, then the If the patent does not comply with the provisions of Article 21, paragraph 2, of the Implementing Rules of the Patent Law, the parties concerned shall resolve the matter through patent invalidation procedures.
17. When reference signs are cited in patent claims, the technical features in the patent claims should not be limited to the specific structures reflected in the drawings. The scope of patent protection should not be completely limited by the specific embodiments disclosed in the specification.
18. The abstract cannot be used to determine the scope of protection of the patent right, nor can it be used to interpret the patent claims.
19. Patent application files and patent review, revocation, and invalidation files can be used to prohibit the patentee from going back on his word when explaining the scope of patent protection.
20. Patent application files and patent review, revocation, and invalidation files can be used to correct printing errors in patent documents. When printing errors in a patent document affect the determination of the scope of patent protection, the original document in the patent file shall prevail.
21. If there are obvious clerical errors in the patent claims or description, they should be interpreted correctly according to the actual situation.
2. Determination of the scope of design protection
22. The scope of protection of a design patent shall be based on the design of the patented product shown in pictures or photos.
A brief description of the design can be used to understand the scope of protection of the design.
23. In an infringement lawsuit, the patentee of a design patent shall submit a "design key point drawing" of his or her design, explaining the original parts and content protected by the design; when applying for a design patent, the patentee shall If a "design key point drawing" has been submitted to the China Patent Office, the patent file can be used as evidence to identify the key points of the design.
24. If a design patent right requires color protection, the right holder shall produce relevant evidence recognized by the China Patent Office to determine the scope of protection of the design. When necessary, the court shall check the color content in the files of the China Patent Office.
25. If a design patent right requires color protection, the color requested for protection shall be used as one of the factors that limit the protection scope of the design patent right. That is, in the infringement determination, the color included in it shall be included in the infringement determination. Compare the shape, pattern, color and combination with the shape, pattern, color and combination of the allegedly infringing product one by one.
26. The protection scope of a design patent shall not extend to the publicly known design content before the application date or priority date of the design patent.
27. The scope of protection of design patent rights should exclude design content that only serves functions and effects but is invisible to consumers during normal use or does not have an aesthetic effect on the product.
The following is a case
--------Also talk about the inspiration for corporate patent protection
1. Introduction to the case
Factory A v. Company B patent infringement case.
Plaintiff (appellant in the original trial): Factory A.
Defendant (appellee in the original trial): Company B.
Plaintiff Factory A obtained a certain patent. The independent claims are: Claim 1, a soundboard keying processing equipment for a mechanical sonoring device, which includes a cutter for cutting comb-shaped slits on a flat metal blind plate and a metal blind plate clamp to be processed. Holding fixtures. It specifically includes five technical features. Claim 9, a key forming method for the soundboard of a mechanical sonoring device, which uses a flake grinding wheel to grind and cut the relative movement of the blind plate to process the key with a prescribed cutting depth, which is characterized in that: during the entire grinding and cutting During the process, each grinding wheel of the tower-shaped cutting knife group is always embedded in the corresponding comb slit of the guide plate and moves back and forth within it. The blind plate is accurately positioned and reinforced on the guide plate. The purpose of this invention is to introduce a purely mechanical guide-cut processing method and special equipment, so that the keying processing of the blind plate becomes very simple, the equipment and processing costs are reduced, but the quality of the sound board is improved. In addition, the patent specification also states that during processing, the blind plate is not cantilevered to accept the cutting of the rotating blade, but is attached to the thick guide plate and fixed by the pressing block. Due to the quality of the guide plate, Large, so the blind plate does not vibrate even slightly during processing. Therefore, the soundboard processed by the equipment and method of the present invention has good sound tooth forming quality and high production efficiency.
The accused infringing product is also equipment for producing mechanical sonoring devices. Compared with the patented technology, it lacks the technical feature of the metal blind plate being clamped on the guide plate with comb slits. Its blindness The plate is not clamped on the limiting element device with the same form as in the patented technology with comb slits. In other words, its limiting element device is not under the blind plate, but is located on the side of the grinding wheel.
In the first instance, the Intermediate People's Court of a certain city ruled that Company B, the alleged infringer, did not constitute infringement on the grounds that the equipment for producing soundboards did not have a guide plate device and lacked the necessary technical features in the patent claims. .
Factory A was dissatisfied and appealed to the Higher People's Court of a certain province. The court of second instance held that the limiter device and the guide plate of the patented technology in the accused infringing product were not substitutes for equivalent technologies. At the same time, since the patent specification clearly excludes the blind plate from being fixed to the guide plate but cantilevered to accept the cutting process of the rotating blade, the alleged infringing product does not fall within the scope of patent protection. Company B did not infringe Factory A’s patent rights.
Factory A was dissatisfied and applied for retrial.
During the retrial process, with the consent of both parties, the Supreme People's Court organized relevant professional and technical personnel to conduct a technical appraisal. Based on the appraisal opinions, it was pointed out that compared with the patent, the accused infringing product and method had fewer guide plates and anti-seismic limits. The two important parts of the plate have similar structures and basically achieve the same functions. The differences in the technical characteristics of the two can be realized by ordinary technicians with mechanical expertise without creative labor. Therefore, it is a substitution of equivalent technology, and Company B constitutes equivalent infringement.
One of the focal points of the dispute in this case is how to determine the scope of patent protection, that is, whether the features appearing in the embodiments of the patent specification can be used to limit the scope of the patent claims.
2. Theoretical disputes about the scope of patent protection
The modern patent system came into being in the first half of the 17th century. Later, the "patent specification" system and the "patent specification" system were gradually developed based on the need to deal with infringement disputes. The "claims" system. In the claims, the patentee (when he is still the "applicant") clearly expresses the scope of protection he requires in the form of technical features and publishes it in the patent document. Others are not allowed to enter this circle without permission. In theory, the circle delineated by the claims should be very clear, but in practice it often becomes somewhat vague. On the one hand, when the patentee originally applied for a patent, he hoped that the patent examination department would interpret the content of the "claims" as narrowly as possible to avoid being included in the field of existing technology, so that his patent application could be approved. On the other hand, patentees who have been granted a patent always hope that the administrative authorities or courts will interpret the content of the claims as broadly as possible during infringement proceedings so that the infringement can be determined. In order to make this artificial "fuzzy area" as clear as possible, the interpretation of the claims is very important. As for the interpretation methods of claims, the theoretical circles generally divide them into three types based on the role of claims in patent documents:
1. Central limitation principle
Center The principle of limitation is represented by the past German patent system, which requires that the scope of patent protection be determined by taking the claims as the center, combining the description and drawings, and considering the purpose and nature of the invention. When interpreting the claims, we should not stick to the written description of the claims, but regard the claims as the general inventive concept, and consider the technical scope that ordinary technicians in the field think should be included after carefully reading the description and drawings. as the maximum level of patent protection. The patent applicant's claims are mainly used to illustrate the creativity of his invention.
2. Principle of peripheral limitation
The principle of peripheral limitation is represented by the British and American patent systems. In 1870, the U.S. patent law established the principle of peripheral limitation, which requires that the patent rights must be clearly delineated in the claims. nature and scope of protection. According to this principle, the scope of patent protection is determined strictly according to the written expression of the claims. The scope recorded in the claims is the maximum extent of patent protection, and the interpretation of the claims is very strict. A claim is not a technical description of an invention, but a legal document describing the scope of patent protection. Just like the title deed signed by both parties when buying and selling land, the function of the claim is to delineate the boundary line of the land as clearly as possible, rather than describing in detail what crops grow on the land and what the terrain is like.
In these countries, patent offices and courts generally determine the scope of patent protection and determine patent infringement based on the specific expression of the applicant's claims in the patent. Once the text of the claims is reviewed and determined by the patent office, the patent rights The scope of protection will also depend on it. In this case, the applicant always expresses his invention and creation in his claims with the most general technical features and abstract language as possible, so that it rises to a general concept. In this way, when interpreting these claims, an expanded interpretation can often be made, thereby obtaining a wider scope of protection.
3. Compromise principle
This principle is a compromise between the above two principles, most typically expressed in the Protocol to Article 69(1) of the European Patent Convention: “Article 69 Article 1 should not be understood to mean that the protection provided by a European patent is limited only by the strict literal meaning of the claims, and that the description and drawings are only used to explain ambiguities in the claims; nor can they be interpreted as It only determines a general core of the invention and serves only as a guide. The scope of protection can be extended from the understanding of the description and drawings by those skilled in the field to the scope of protection expected by the patentee, but should be based on the above two types. Starting from the middle ground of extreme interpretation, the interpretation of the claims can not only provide fair protection for the patentee, but also ensure reasonable legal stability for the public. "According to this principle, the scope of patent protection should be based on the claims. The description and drawings can be used to interpret the claims.
3. Research conclusions
(1) Research conclusions on relevant theoretical disputes
The author believes that my country should adopt a compromise principle to determine the scope of patent protection. The reasons are as follows:
The central limitation principle absorbs certain technical elements around the creative idea (center) of the patent into the scope of the claims. In countries that implement this system, a patent applicant does not need to provide an abstract description of his invention in the claim, but only needs to truthfully state the essential content of the invention. This principle can provide the patentee with fair legal protection because of its wide scope of protection. However, due to the uncertainty of the scope of patent protection, the function of the claims to inform the public is greatly inferior, and it often damages the public's legal rights. Interests, this will limit the progress of technology to a certain extent.
The principle of peripheral limitation meets the requirements for the accuracy of claims to a certain extent, adapts to the needs of the development of the patent system, and is important for ensuring the public’s free use of prior technologies and unknown technologies in the field of patent protection. It is of great significance for the free development of technology. This principle strictly limits the scope of protection and the exercise of private rights, and tends to safeguard public rights and interests. However, peripheral limitation doctrine often falls into the difficulty of mechanical rigidity, because "inventors and creators cannot predict the claims and future forms of infringement that should be protected under the development of science and technology under a specific technical background." The infringer can use non-substantive Modifications can easily evade infringement liability, thus preventing the patentee's interests from being effectively protected.
The two interpretation methods advocated by the central limiting principle and the peripheral limiting principle are completely opposite. The former can ensure effective protection for the patentee, but it is not conducive to the public's ability to accurately predict the scope of patent protection. The latter is convenient for ensuring legal certainty in the scope of patent protection, but it is not conducive to providing flexible and effective patent protection to patentees. The serious flaw of both is that they prevent the good functioning of the patent system.
The author believes that the middle ground established by Article 69 of the European Patent Convention can not only provide good protection for the patentee, but also provide reasonable legal certainty to others, thereby harmonizing The balance of interests between the patentee and the public. In order to coordinate the patent-related aspects of the Paris Convention for the Protection of Industrial Property, the World Intellectual Property Organization (WIPO) organized experts from various countries to formulate the Patent Coordination Agreement in the early 1990s. The main content of Article 21 of the Agreement is basically the same as Article 69 of the European Patent Convention and its Interpretation Protocol, but it is much more detailed and specific. This shows that the principle established by the European Patent Convention has been generally accepted by the international community. The compromise principle not only takes into account the interests of the patentee but also the interests of the public in determining the scope of right protection, balancing the interests of the two well, and provides a theoretical basis for applying the principle of equivalents to determine patent infringement. , it should be said that it has a strong scientific nature.
Article 56 of my country’s Patent Law also stipulates with reference to the protocol of Article 69(1) of the European Patent Convention: “The scope of protection of an invention or utility model patent shall be determined by the claims. The content shall prevail, and the description and drawings may be used to interpret the claims.
Two independent claims are respectively recorded in the claims of the invention patent: claim 1 is an independent claim for the method and equipment for realizing the keying of the soundboard of the mechanical sonoring device; claim 9 is the keying of the soundboard of the mechanical sonoring device. Independent claims to the method. According to patent claim 1, the necessary technical features of the bonding processing equipment can be broken down into five. According to patent claim 9, the necessary technical features of the bonding method can be broken down into three. As long as the keying method of the mechanical sonoring device soundboard used by the accused infringer or the equipment manufactured to implement the keying method cover the necessary technical features recorded in patent claim 1 or claim 9, or belong to them Equivalents fall within the scope of patent protection and constitute infringement of patent rights. The retrial court's determination of the scope of patent protection followed the above analysis, which should be said to be appropriate.
(3) Enlightenment for enterprise patent protection
Through the above analysis of this typical case, we have solved the key issues raised in the case at the beginning of this article and clarified How should the scope of patent protection be determined in my country’s judicial practice. But at the same time, we should also see the practical issues reflected in the case through the specific legal issues involved: as the main entity enjoying the economic benefits brought by patent rights, how should enterprises expand their business as much as possible? What is the scope of protection of the patent rights enjoyed in order to protect the economic interests of the company as much as possible?
The author believes that when companies apply for patents, they should write high-quality claims and descriptions in accordance with the provisions of my country’s patent law and the requirements of the compromise principle adopted in my country’s judicial practice, so as to ensure that Clearly and briefly state the scope of protection requested. Specifically, it includes the following requirements:
(1) The claim should be based on the description and describe the scope of patent protection required. The claims should be based on the description, which means that the claims should be supported by the description, that is, the technical solution claimed by each claim in the claims should be fully disclosed by a person skilled in the technical field from the description. The technical solutions obtained or summarized in the content shall not exceed the scope disclosed in the instructions.
(2) The claim should clearly state the scope of protection requested. This mainly includes two aspects. One is that each claim should be clear, and the other is that all the claims constituting the claim as a whole should also be clear.
(3) The claim should briefly state the scope of protection requested. Not only should each claim be brief, but all claims as a whole should be brief.
(4) The description shall give a clear and complete description of the invention or utility model, which shall be subject to the ability of skilled persons in the relevant technical field to realize it. If the description clearly and completely describes the invention or utility model so that a person skilled in the technical field can implement it, the technical content of the invention or utility model has been fully disclosed.
(5) Paragraph 4 of Article 26 of my country’s Patent Law stipulates that claims should be based on the description. This provision explains the relationship between the claims and the description, that is to say , the description should support the claims.
(6) The content of the description should be in standardized terms and clear sentences, and the written expression should strive to enable those skilled in the field to correctly understand the technical content of the invention or utility model.
In summary, when determining the scope of patent protection, a compromise principle should be adopted in interpreting the claims, that is, the scope of protection of the invention or utility model patent shall be based on the content of the claims, the description and The drawings may be used to explain the claims. Only by using this as a standard and writing high-quality claims and instructions in accordance with the above requirements can an enterprise clearly and briefly state the scope of protection requested and protect the interests of the enterprise.
You should have some understanding through analysis.