The scope of protection of claims is a core concept that runs through the writing, examination and patent existence stage of patent applications for inventions and utility models. In the writing and review stage, the applicant puts forward the scope of patent protection, and the examiner examines whether the scope of protection is appropriate (and other issues); During the duration of the patent right, the patentee enjoys the patent right determined by the scope of protection.
Paragraph 1 of Article 59 of the Patent Law revised in 2008 stipulates: "The scope of protection of the patent right of an invention or utility model shall be subject to the contents of its claims". Therefore, the content of the claim determined according to a certain writing form directly affects the size of its protection scope. Regarding the writing form of the claim, Section 3.3 of Chapter 2 of Part II of the Patent Examination Guide puts forward the concepts of "open claim" and "closed claim": "In general, the open claim should be expressed in the form of" including ","containing "and" mainly consisting of …………………………………………………………………………………………………………………………………………………………………………………………………………………………………………… A closed claim should adopt the expression "consisting of", which is usually interpreted as not containing structural components or method steps other than those stated in the claim. "
The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Patent Infringement Disputes (hereinafter referred to as the Interpretation), which came into effect on June 10, established a number of important principles for judging patent infringement, among which Article 7 stipulated the basic method for judging patent infringement, namely the "principle of universal application" in the theory of patent law: "The people's court judges whether the technical scheme accused of infringement belongs to the patent right, and the technical scheme accused of infringement contains all the same technical features as those recorded in the claim. If the technical features of the technical scheme accused of infringement lack more than one technical feature recorded in the claim compared with all the technical features recorded in the claim, or multiple technical features are not the same or equivalent, the people's court shall determine that it does not belong to the protection scope of the patent right. "
The concept of "closed claim" is applicable to "composition invention". According to the Patent Examination Guide, the closed claim of a composition means that the composition only includes the components recorded in the claim, excluding all other components. Therefore, if there are other components in the technical scheme of the alleged infringement, it can be regarded as not covering all the technical features of the closed claim, so it does not belong to the protection scope of the patent right; However, for open claims, it should be understood that it covers all the technical features of the claims, so it belongs to the scope of patent protection. That is, the protection scope of open claims and closed claims is different.