In order to better protect their intangible assets by applying for patents, enterprises must clearly understand the scope of patent protection in order to make patent layout in the market.
I. Scope of protection of design patent right
The scope of protection of the patent right of design is "the patented product of design shown in the picture or photograph shall prevail". This provision shows that the scope of protection of the design patent right is based on pictures or photographs reflecting the product design. The proportion of applications for design patents in China is still very large, and the scope of "design patent products represented by pictures or photographs" protected by design patents should be the scope of similar products; Not the same product, even if the design is the same, can not be considered as infringement of patent rights.
Second, the scope of protection of patents for inventions and utility models
Article 59 of the Patent Law stipulates that the scope of protection of the patent right for inventions and utility models shall be subject to the contents of the claims, and the contents of the claims may be explained by the description and drawings. Although the applicant always wants to delimit the protection scope of his patent right as much as possible in the application process, he still needs to maintain the principle of fairness and justice. Therefore, this provision almost balances the requirements of the patentee and the interests of the public.
Three Principles for Defining the Scope of Patent Protection
First, the principle of central control system.
This principle only needs to fully reveal the general idea of invention and creation through the contents of the specification and its drawings, and expand the scope of protection to a certain range around it. As long as the patentability conditions for granting patent rights are met, there is no need for high abstraction and generalization. Therefore, the central restriction principle can be further expanded and supplemented compared with the above-mentioned peripheral restriction principle, which can effectively prevent someone from using the loopholes in patent writing to escape the corresponding legal investigation in patent disputes, which is beneficial to enterprises. However, due to its vague scope of protection, there may be some unfair phenomena to the public, which is difficult to distinguish from it.
Second, the principle of peripheral restriction system
When understanding and interpreting the claims, the principle of perimeter definition can only be carried out in strict accordance with the literal meaning of the claims, and no other extended interpretation is allowed. Although this method can clearly present the scope of patent protection, it also has great risks. Because "word games" are very easy to find, once loopholes appear, they will be in a weak position in patent disputes. Therefore, the requirements for patent applicants or patent agents are extremely high, and patent writing should be considered every word.
Third, the principle of compromise.
The principle of compromise is between the above two. This principle is not limited to "peripheral restrictions" but is completely mechanically subject to word games, and it also cleverly avoids the unfairness and embarrassment that "central restrictions" expand the scope of patent protection to infinity. It is a good way to seek a balance of interests between the patentee and the public. At present, many countries use the eclectic principle to write patents, while China basically adopts the eclectic principle when defining the scope of patent protection.