For invention and utility model patent rights, the criterion is whether the technical features of the alleged infringing object (product or method) fall within the protection scope of the patent right. If so, it constitutes infringement. The method of determination is to compare the technical characteristics of the alleged infringement with the scope of protection of the patent right. The specific method is as follows:
1. Determine the scope of protection of the patent right. The scope of protection of patent rights for inventions or utility models shall be based on the content of the claims. The description and drawings may be used to interpret the claims. When interpreting the patent claims, the technical content recorded in the patent claims shall prevail, rather than the technical content recorded in the patent claims. The wording or wording of the claims shall prevail.
2. According to the principle of comprehensive coverage, all the technical features of the alleged infringing article (product or method) are compared one by one with all the technical features of the technical solution recorded in the patent claims. If (the product or method) corresponds to and is identical to all necessary technical features recorded in the independent claims of the patent, it constitutes infringement. Specifically, there are four situations:
a), including - the technical features of the alleged infringement include all necessary technical features recorded in the patent claims;
b), A higher-level concept covers a lower-level concept - the necessary technical features recorded in the independent claims of the patent adopt a higher-level concept, and the alleged infringement is a lower-level concept;
c), newly added - the alleged infringement On the basis of utilizing all the necessary technical features in the patent claims, the object adds new technical features;
d), dependent patent--the alleged infringing object is an improvement on the prior patented technology , and obtained the patent right, which is a subordinate patent. Without the permission of the prior patentee, the subordinate patent can be implemented without authorization.
3. According to the principle of equivalents, the technical features of the alleged infringement are compared with the technical features in the patent claims. Even if they do not appear to be the same literally, they can be determined to be equivalent after analysis. That is, the two use the same means to achieve basically the same functions and produce basically the same effects, or the technical features of the alleged infringement are such that a person of ordinary skill in the field to which the patent belongs can, by reading the patent claims and description, without creative work Reminiscent technical features. In this case, it should be determined that the alleged infringement falls within the scope of patent protection.