(a) the scope of protection of the patent right for inventions and utility models
Paragraph 1 of Article 59 of China's Patent Law stipulates that the scope of protection of the patent right of an invention or utility model shall be subject to the contents of its claim, and the description and drawings can be used to interpret the claim. patent
Article 20 of the detailed rules for the implementation of the law stipulates that the patent claim shall specify the technical characteristics of the invention or utility model and clearly and concisely state the scope of protection requested. Therefore, when determining the scope of patent protection, the first is the right.
The content of the claim shall prevail, in which "to" refers to the essential content of the technical characteristic parameters recorded in the claim. On this premise, the claim can be interpreted by using the specification and drawings. The explanation here is that
Grasp the requirements of the patent claim as a whole, rather than citing a certain technical parameter and feature in the patent claim in an ambiguous situation.
Of course, it does not mean that this interpretation can go beyond the understanding of the specification and drawings by ordinary technicians in this technical field and extend to the scope expected by the patentee. The Supreme People's Court explained this.
Interpretation refers to the scope determined by the necessary technical features clearly recorded in the claims, including the scope determined by the features equivalent to the necessary technical features. The so-called equivalent features refer to the basis of the recorded technical features.
The same method realizes basically the same function and achieves basically the same effect, and ordinary technicians in this field can associate features without creative work.
(2) the scope of protection of design
Paragraph 2 of Article 59 of China's Patent Law stipulates: "The scope of protection of the patent right for design shall be subject to the patented product for design shown in pictures or photographs".
Paragraph 4 of Article 2 of China's Patent Law also stipulates that design refers to the aesthetic feeling produced by the shape, pattern or combination of products and the combination of color and shape and pattern, which is suitable for industrial use.
New design of application program. The protection scope of design is based on products suitable for industrial application, that is, the shape and pattern of products, or the combination of shapes and patterns or the combination of colors, patterns and shapes, and the products.
The shape, pattern or their combination and the combination with color should be aesthetic. Therefore, the standard that the protection scope of design is based on the patented product of design shown in pictures or photographs is very subjective. product
Pictures or photos themselves can't fully reflect the product itself, and there are differences between human visual reflection and objective performance of the product, especially the restoration effect of color photos can't be perfect, not to mention the shape is composed of points, lines and surfaces.
On the whole, different perspectives have different effects, especially colors. Therefore, it is impossible for people to fully agree with the design of color, shape and pattern combination. Therefore, we think that the patent right of design.
The scope of protection should be extended to similar designs.