(1) the scope of protection of the patent right for invention or utility model
According to Article 26 of the Patent Law, Article 56 1 and Article 20 1 of the Detailed Rules for the Implementation of the Patent Law, the following aspects should be paid attention to when determining the scope of protection of the patent right for invention or utility model:
(1) The scope of protection of the patent right for an invention or utility model shall be subject to the contents of its claims. That is to say, the fundamental basis for determining the scope of patent protection for invention or utility model is the patent claim, which is the whole and substantive content of the patent claim, rather than individual words or wording. If a technical idea is not recorded in the claim, even if it is embodied in the specification and drawings, it still does not belong to the scope of patent protection. Thus, what is not recorded in the claims can be excluded from the protection scope of the patent right. The patent claim is the basic basis for determining the scope of patent protection, and the specification and drawings cannot be used as the basis for determining the scope of patent protection, but only occupy a subordinate position.
(2) As the basis for determining the scope of patent protection, the content of the claim must be clearly and accurately stated. In order to make a clear and accurate explanation of the technical features recorded in the claims and clarify the purpose and effect of the invention, we must refer to the specification and drawings. The specification and drawings have the legal function of explaining the claims.
(3) When determining the scope of patent protection, in order to clarify the meaning of a technical term, you can also refer to the correspondence and documents between the patent administration department of the State Council, China and the applicant in the process of patent application. Of course, these letters and documents cannot be used as the basis for determining the scope of patent protection, but what the patentee said in these letters and documents is recognized, promised and abandoned, and the patentee cannot go back on his word in the future. This is the so-called "estoppel principle".
(two) the scope of protection of the patent right of design
According to Article 56, paragraph 1 of the Patent Law, the scope of protection of the patent right for design shall be subject to the patented product for design shown in pictures or photographs. When determining the scope of protection of the patent right of design, we should pay attention to the following aspects:
(1) There are no claims and specifications in the application document for a patent for design, so the scope of protection shall be based on pictures or photographs, even if the size is slightly different, it will not hinder the determination of rights.
(2) The protection scope of the patent right for design is limited to the design used on the designated product when the patent right is granted, that is, others cannot use the same or similar design on the designated product.