Scope of patent protection

Patent system is a system that encourages technology owners to exchange exclusive protection granted by law in the form of technology disclosure. Patent right is an exclusive right. The scope of patent protection refers to the system in which the state exclusively exercises the right to manufacture, use, promise to sell, sell and import inventions and creations patented by the patentee through administrative and judicial procedures. To protect the patentee's patent right, we must first clarify the scope of protection of the patent right. Only when the scope of patent protection is clear can the administrative departments and judicial organs in charge of patent work at all levels give effective protection to patent rights. I. Scope of Protection of Patent Claims in Patent Litigation III. Determining the scope of protection of patent infringement is the premise of judging patent infringement. Only when the object accused of infringement falls within the scope of patent protection will it be recognized as infringement, and vice versa. Compared with other civil rights, especially with tangible property rights, patent right has certain particularity. The right object of tangible property right is real estate, and its scope is certain; The right object of patent right is invention and creation, which belongs to intellectual achievements and has intangible characteristics. It is not only invisible and intangible, but also unlike light, electricity and other intangible substances, it can be perceived through human senses or instruments. Therefore, it is necessary to define the scope of its protection in law. 1, central restriction principle. The so-called central restriction means that the scope expressed in the body of the claim is only the minimum scope of patent protection. Focusing on the technical scheme recorded in the claim, we can fully understand the overall idea of invention and creation through the contents of the specification and its drawings, and the protection scope can be extended to a certain range around. [1] This practice makes the scope of the patent right not limited to the literal meaning of the claim, but also can better extend and cover all substantive features of the patent scheme. The advantage of adopting the central restriction principle is that it can effectively prevent people from taking advantage of the defects in the writing of claims to escape the corresponding responsibilities, thus fully protecting the interests of patentees. The disadvantage is that it will lead to the ambiguity and uncertainty of the scope of patent right. If the degree of external expansion is not well understood, new technological innovation may be regarded as infringement, thus hindering the innovation and development of science and technology. 2. The principle of peripheral restriction. The so-called peripheral restriction means that the scope of patent protection is completely determined according to the text of the patent right, and the text of the patent right should be interpreted strictly and faithfully, and the scope of its text expression is the maximum scope of patent protection. The patentee must be restricted by this scope when exercising his rights, and shall not cross the border. [2] The advantage of this approach is that the scope of patent protection is defined in strict accordance with the literal meaning of the claim by adopting the principle of peripheral definition, and no extended interpretation is allowed. Disadvantages are: the adoption of the principle of external restrictions puts high demands on the writing of patent applications, and the writing of patent claims must be scrutinized and carefully considered, otherwise the patentee may not be fully protected because of the defects in the writing of patent claims. 3. The principle of compromise. This principle is the synthesis and compromise of the above two principles. The eclectic principle means that the scope of patent protection is determined by the substantive content recorded in the claim, not strictly by the text of the claim. When the technical features expressed in the claim are not clear, the description and drawings can be cited for explanation. [3] Judging from the development trend of patent system, most countries have more or less adopted a compromise between the two. For example, Article 69 of the European Patent Convention stipulates that the scope of protection of a European patent or a European patent application is determined by the content of the claim, and the description and drawings can be used to explain the claim. This principle is reasonable, which can not only effectively protect the patentee's patent right, but also avoid the uncertainty of the scope of patent protection. (II) Scope of Patent Protection of China Patent Law When determining the scope of patent protection, China Patent Law adopts the principle of compromise. There are three types of patent protection in China, namely invention, utility model and design. According to the different objects of protection, China has also stipulated different scope of protection.