1. The scope of protection of patent right refers to the scope of invention and creation involved in the legal effect of patent right.
2. The scope of protection of the patent right for invention or utility model shall be subject to the content of the claim, and the description and drawings can be used to illustrate the claim.
3. The scope of protection of the patent right of design shall be subject to the patented product of design shown in pictures or photographs.
4, determine the scope of patent protection legal documents are claims, specifications, design photos or pictures.
Principles for determining the scope of patent protection
When determining the scope of patent protection for inventions and utility models, the interpretation of the scope described in the claims is the key issue. From different standpoints and according to different interpretation principles, the scope of protection is different.
(1) central principle
According to this principle, patent claim is the basis of patent protection scope. However, when interpreting the claims, we should take the substantive content expressed in the claims as the center, comprehensively consider the purpose and nature of the invention-creation, as well as the specification and drawings, and bring a certain range of technologies into the center of the protection scope. There is no need to insist on the required written record. German legislation has adopted this principle. This practice provides sufficient protection for the patentee, but for the third party, the scope of patent protection is in an unclear state, which is actually not conducive to fair competition.
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(2) Peripheral principle
This principle requires strict interpretation in accordance with the written records of patent rights, and the scope of protection of patent rights cannot exceed the written records of patent rights. The specification and drawings cannot be used as the basis for determining the scope of patent protection, and can only be used for restrictive interpretation of the scope of protection in the case of unclear claims. The United States and Britain used to adopt this legislative model. Strict literal interpretation is beneficial to third parties. With a little improvement, it is possible to get out of the scope of patent protection. According to this principle, high requirements are put forward for the writing of claims. In fact, it is difficult to find a more suitable literal expression of the upper concept of the scope of protection when applying for a patent.
(3) Compromise principle (interpretation principle)
According to this principle, the scope of patent protection should be determined according to the substantive content expressed in the claim, but when the technical features expressed in the claim are in doubt, the specification and attached drawings can be cited for explanation. This principle has been adopted by the European Patent Convention and the patent legislation of its member countries and China.
Scope of protection of invention patents and utility model patents
According to the provisions of China's patent law, after an invention patent and a utility model patent are authorized, the scope of rights protected by law shall be subject to the claims in the claims submitted by the patent applicant to the National Patent Office of China, and the claims can be explained by the specification and attached drawings. In other words, the claim is the direct basis for determining the scope of patent protection for invention or utility model, and it is in a dominant position. Instructions and drawings are secondary. If a technical feature in the claim is not clear, it can be understood through the specification and drawings, and can be modified according to the contents disclosed in the specification and drawings when necessary. However, what is not recorded in the claims cannot be protected by law, and the description itself cannot determine the scope of protection.
According to the different nature of the invention, the scope of protection is different, or the effectiveness of the patent right is different. As far as product invention is concerned, the effect of patent right involves products with the same characteristics, the same structure and the same performance, regardless of the method used to manufacture the products. The protection of products should not be limited to the methods described in the manual, and any identical product manufactured by other methods is also an infringement. The utility model belongs to a product patent. For method inventions, the scope of patent protection is to use the method and to use, promise to sell, sell or import products directly obtained by the method.
Scope of protection of design patent
The application documents for the design patent have no claims and instructions, only pictures and photographs showing the design. Therefore, the patent law stipulates: "The scope of protection of the patent right of design shall be subject to the patented product of design shown in pictures or photographs." In other words, the scope of patent protection is determined according to the contents, models and samples recorded in the design pictures or photos submitted by the applicant, and it is limited to the specified product categories.