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 second paragraph of Article 56 of the 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."
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.