The protection scope of patent right refers to the legal effect scope of invention-creation patent right. When the society or the country grants the patent right to the patent applicant, the patent applicant must take the technology disclosure as the consideration. At the same time, the scope of patent protection must also be made public, thus defining the boundaries of patent rights. For invention and utility model patents, the disclosure of the scope of rights is realized by the disclosure of claims, and the laws of all countries recognize that claims are legal documents that define the scope of patent protection [2]. For example, Article 56, paragraph 1 of China's Patent Law stipulates that the scope of protection of the patent right of an invention or utility model shall be subject to the contents of its claim, and the description and drawings can be used to explain the claim. Therefore, the content of the claim is the standard to judge whether the patent right of invention and utility model is infringed.
There have always been two representative ways to understand and interpret claims or determine the scope of patent protection in the world, one is the central restriction system represented by Germany, and the other is the peripheral restriction system represented by Britain and the United States [3]. The center-limited system means that when understanding and interpreting the scope of the claim, the basic core described in the claim is taken as the center, and an appropriate extended interpretation can be made outward. The theoretical basis of the center-limited system is that it is difficult for the patentee to write correct patent claims, and sometimes it is inevitable to write some unnecessary technical features that should not be written into independent claims, which leads to the narrowing of the scope of patent protection, which is essentially a forgiveness policy for the patentee. In this way, the scope of the patent right is not limited to the literal meaning of the claim, which can provide more protection for the patentee. Legislation adopting centralized restriction system is a legislative norm centered on protecting individual rights. With the transfer of legislative standards and the development of legal theory, many countries have gradually abandoned the theory of central prescription system. Due to the central restriction system, the boundary of patent protection is in a vague state, and the public cannot accurately judge the scope of patent protection after reading the patent claims, so it is sometimes unfair to the public. In order to overcome the defects of the central control system, some countries, such as the United States, later adopted the peripheral control system. The so-called peripheral restriction system means that the protection scope of patent right is completely determined by the literal content of patent right and cannot be expanded and explained. The alleged infringement must reproduce all the technical features recorded in the patent right repeatedly before it is considered to belong to the protection scope of the patent right. By adopting the peripheral restriction system, the public can clearly understand the protection scope of the patent right through the claims without making any guesses. The theoretical basis of the peripheral qualification system is that the patent right is the consideration for the disclosure of technology exchanged by the state or society, and the scope of rights as the consideration should be clear. Although the adoption of the external restriction system is beneficial to the public, it is sometimes not conducive to the protection of patent rights. Because in social practice, it is rare to completely copy other people's patented products or methods, but it is common to simply replace or transform one or several technical features in other people's patent claims in order to achieve the purpose of implementing other people's patents. If the scope of patent protection is completely determined by the literal content of the claim, it is difficult to fully protect the patent right.
The central restriction system is unfair to the public, while the peripheral restriction system is not conducive to protecting the patentee. In order to make up for the shortcomings of the above two methods, many countries in the world, including Germany, which adopts the central restriction system, and the United States, which adopts the peripheral restriction system, have turned to the compromise principle. In some regional international conventions, the proper explanation of the claim is also expounded theoretically [4]. The Supplementary Protocol to the European Patent Convention interprets Article 69 of the European Patent Convention as follows: Article 69 of the Convention should not be interpreted as: the scope of protection granted by the European patent must be understood according to the literal meaning of the text of the claim, and the description and drawings are only used to explain the ambiguities in the claim; On the other hand, Article 69 should not be interpreted as a guide to the claims, and the scope of protection should be extended to the scope that those skilled in the art can understand after carefully studying the specification and drawings, that is, the scope of protection that the patentee hopes. Accordingly, we should seek the interpretation of this article between two extreme situations, considering both fair protection for the patentee and legal stability for the third party. This explanation shows that continental European countries have changed from the principle of central restriction to the principle of compromise.
Article 56 1 of China's patent law actually adopts the principle of compromise. Among them, the scope of protection is based on the content of the claim, that is, it is not allowed to deviate seriously from the content of the claim, which clearly excludes the extreme practice of taking the scope of protection expressed in the text of the claim as the center and then expanding it greatly. The description and drawings can be used to interpret the claims. In the case of acknowledging the above premise, the scope of the claim can be modified to a certain extent by using the specification and attached drawings to achieve a more reasonable result [5]. Although there is no accurate definition of the compromise principle in law, different people have different understandings of the compromise principle, but the compromise principle is that there should be no objection to the compromise between the central limit system and the outer limit system. Specifically, when judging the scope of patent protection, it can neither be completely understood according to the literal meaning of the claim, nor can it be completely interpreted by the patentee or judge according to his subjective will.
The adoption of eclectic principle conforms to the development trend of civil law legislative standards in the 20th century from individual standards centered on protecting individual rights to social standards centered on protecting social public interests, and also embodies the principle of fairness in civil law. Therefore, when determining the scope of patent protection, it is a better way to find the balance between the interests of the patentee and the public by adopting the compromise principle based on patent claims and supplemented by instructions and drawings.
Second, the principle of estoppel.
When using the compromise principle to explain the scope of patent protection, we should also use the estoppel principle. The so-called estoppel principle means that in patent application and patent infringement litigation, the patentee's interpretation of the claim should be consistent. The patentee cannot interpret the claim in a narrow sense or a narrow sense in the process of patent application in order to obtain a patent; In the later patent infringement litigation, in order to make the claim cover the alleged infringing product or method, the claim was given a broad and broad interpretation. For those contents that have been modified or abandoned in the process of patent application, the patentee cannot go back on his word in the subsequent patent infringement litigation [6]. This principle has been adopted by many countries, and the estoppel principle has also been written into the draft substantive coordination treaty of patent law (SPLT). China's patent law does not stipulate the principle of estoppel, but it should be adopted in judicial practice [7]. The principle of estoppel aims at preventing the patentee from adopting the strategy of reneging on his word. In fact, it is the concrete application of the principle of good faith in civil law. China should add the provision of estoppel principle in future patent legislation.
Third, the same principle.
The so-called identity principle refers to the principle that the accused infringing product or method constitutes infringement when the corresponding characteristics that are the same as each technical feature recorded in Claim [8] can be found. Infringement judged according to the same principle is called the same infringement. The independent claim among the claims contains the least technical features and the widest scope of protection. The independent claim includes not only the necessary technical features that distinguish the patented technology from the existing technology, but also the necessary technical features that the patented technology and the existing technology have, that is, * * * has characteristics. The patent law protects neither the distinguishing features nor the features of * * *, but the distinguishing features and * contained in the claims. When judging patent infringement, the whole independent claim should be taken as the object of comparison. The product or method accused of infringement only uses all the necessary technical features in the independent claim, that is, it completely covers the scope of patent protection and constitutes infringement. Therefore, the same principle is also called universal coverage principle.
According to the same principle, if the accused infringing product or method adds new technical features on the basis of the patent claim, it still belongs to the scope of patent protection, because the technical features of the accused infringing product or method completely cover all the necessary technical features recorded in the patent claim.
China National Intellectual Property Administration's "Review Guide" stipulates that the disclosure of the general (upper) concept does not affect the novelty of the application for a patent for invention or utility model defined by the specific (lower) concept [9]. For example, halogen is used and disclosed in the comparison document, and fluorine is selected in the invention patent application. Because halogen is superior to fluorine, the disclosure of halogen in the comparison document does not damage the novelty of the invention patent application limited by fluorine. However, if the technical feature disclosed in a patent claim is halogen, and the alleged infringement method uses fluorine, it obviously belongs to the protection scope of the patent right. In other words, even a novel technical scheme may constitute the same infringement. China National Intellectual Property Administration's "Examination Guide" also stipulates that if the technical features defined in a patent application are continuous numerical ranges, and a wider numerical range is disclosed in the comparison document, and the two numerical ranges do not have the same endpoint or partially overlap, it is required to protect the technical scheme with the technical features with a narrower numerical range for novelty. The above benchmarks are also applicable to the judgment of whether the technical characteristics of this kind are the same in creative judgment [10]. For example, the concentration range disclosed in the comparison document is X = 10% ~ 80%, while the concentration range in the technical scheme claimed is Y = 30% ~ 60%. At the same time, given a specific value of 50% in this range, all other technical features are the same, then the technical scheme of limiting the characteristics of Y = 30% ~ 60% and 50% is novel and has novelty. However, in this case, if the comparison file is a valid patent, all technical solutions obtained after this patent still belong to the protection scope of the previous patent. The exploitation of the patent without the permission of the patentee of the previous patent still constitutes the same infringement.
From the above analysis, it can be seen that the application of the same principle does not require that the technical scope covered by all necessary technical features of the accused infringing product or method is exactly the same or the same as that covered by all necessary technical features in the independent claim, but requires that the accused infringing product or method can find the same corresponding features as each technical feature recorded in the claim.
Fourth, the principle of reciprocity.
Just as there are few identical things in the world, but there are many similar things, in judicial practice, there are few infringements of completely copying other people's patented products or methods. It is very common to simply replace or transform one or some technical features in other people's patent claims in order to achieve the purpose of implementing other people's patents. If the same principle is applied under any circumstances, the interests of the patentee will not be effectively protected, and the patent right obtained by the patentee by making his invention public will also be lost, which is contrary to the purpose of the patent system to encourage the disclosure of inventions. How to identify the above acts as patent infringement, so the principle of equivalence came into being.
The so-called equivalence principle refers to replacing the necessary technical features in the patent claim with substantially the same way, means or product, so that they have substantially the same effect. In this case, although there are some immaterial differences in form or technology, it should be regarded as infringement [1 1].
The United States played the greatest role in the establishment and development of the principle of equivalence, and its history of adopting the principle of equivalence can be traced back to 18 18. Later, this theory was adopted by Germany, Japan and other countries and gradually became an internationally recognized theory. Modern equivalence theory was established by the Supreme Court of the United States in a case of 1950, and put forward the criteria for judging whether it constitutes equivalent infringement, that is, whether the technical elements of the patented invention and the object accused of infringement have achieved basically the same function in the same way and produced basically the same effect. The above criteria are called functional mode effect criteria.
The draft of the Treaty on Substantive Coordination of Patent Law (SPLT) brings the principle of equivalence into the scope of substantive coordination of patent law, and suggests that technical features equivalent to those recorded in the claims should be considered when determining the scope of patent protection. At the same time, specifying that a technical feature is equivalent to the technical feature recorded in the claim means that they realize basically the same function and produce basically the same effect in basically the same way, which is obvious to those skilled in the art..
Although the principle of equivalence has been applied in China's judicial practice for a long time, although China's patent law has been revised twice, the current patent law and its implementing rules do not clearly stipulate the principle of equivalence. In order to make up for the legislative defects, the Supreme People's Court extended the interpretation of Article 56 of the Patent Law, and clearly stipulated the principle of equivalence in Several Provisions on the Application of Law in the Trial of Patent Dispute Cases (Law Interpretation [200 1] No.21). Among them, article 17 stipulates that the scope of patent protection shall be subject to the necessary technical features clearly recorded in the claims, including the scope determined by the features equivalent to the necessary technical features. Equivalent features refer to features that basically achieve the same functions and effects as the recorded technical features by basically the same means, and can be associated by ordinary technicians in the field without creative labor. It can be seen that China's judicial interpretation fully adopted the proposal of the Draft Treaty on the Coordination of Substantive Law of Patent Law (SPLT). According to the provisions of the judicial interpretation, the application of the principle of equivalence must meet two criteria at the same time [12]: first, the objective criteria, and the equivalent features must have no substantial difference from the technical features clearly recorded in the claims in terms of means, functions and effects, but only simple replacement or transformation. This is consistent with the functional model effect standard put forward by the US Supreme Court. The second is the subjective standard, which ordinary technicians in this field can associate without creative labor, that is, it is obvious to ordinary technicians in this field. The so-called ordinary technicians are an imaginary group, neither technical experts in this field nor people who don't understand technology. Generally speaking, people with junior and intermediate technical titles in this field can be regarded as ordinary technicians.
Regarding the criterion of equivalence, the Supreme Court of the United States once suggested that whether two technical features are equivalent should be judged by whether they achieve basically the same function and produce basically the same effect in basically the same way; The Supreme Court of Germany believes that the most important thing to judge whether it is equivalent is whether ordinary technicians in their fields can easily think of the accused infringing products or methods from the technical scheme defined in the claims, which is actually equivalent to the subjective standard in judicial interpretation in China. Judging from the expression of China's judicial interpretation, China adopts the unification of objective standards and subjective standards, and only when both standards are met can they be regarded as equivalent. Whether the equivalent judgment is a factual issue or a legal issue, there are differences among American judges, but most judges think it is a factual issue. The Supreme Court of the United States believes that the equivalent judgment is a matter of fact, and both parties can produce expert testimony, existing technical data and related documents. In the United States, an equal verdict is decided by a jury. In China's judicial practice, the judgment of equivalence is also a matter of fact. Whether it constitutes equivalence can be technically appraised by the appraisal institution [13][ 14], but the appraisal conclusion is finally determined by the judge. The judgment of the same infringement is an objective judgment, and the parties have enough confidence to foresee the judgment result of the court or the patent management authority, while the judgment of the equivalent infringement is different, including a certain degree of subjective judgment. Since judgment is subjective, it is better to have subjective judgment standards. The above-mentioned judicial interpretation in China has absorbed both the objective standards of the United States and the subjective standards of Germany, which should be said to be an ideal standard.
After having the equivalent judgment standard, how to use it is also very important. When judging the equivalent infringement, both the United States Court of Appeals for the Federal Circuit (CAFC) and the German Supreme Court believe that it is necessary to compare the object of the alleged infringement with the technical scheme of the claim, and also compare the object of the alleged infringement with the existing technology to judge whether the object of the alleged infringement is closer to the patented technology or the existing technology. If it is closer to the existing technology, it cannot be regarded as equivalent infringement [14]. In fact, so is China. In China's judicial practice, the well-known technology can be defended against the accusation of equivalent infringement, and the one that is closer to the well-known technology but different from the patented technology should be deemed not to constitute infringement [15].
There is also a time point problem in equivalence judgment. Some people think that the technical status of the patent application date or priority date should be taken as the benchmark, and German courts have adopted this view. The judgments of the United States and Japan are based on the technical status of the infringement date. In this regard, China's laws are not clearly defined, and there is no unity in practice. In my opinion, it is better to take the technical condition of the infringement date as the benchmark, because the patent right is time-limited and should be equally protected within the validity period, which is fair to the patentee. With the development of technology, what ordinary technicians could hardly think of ten years ago may become common sense ten years later. Based on the technical status of the patent application date or priority date, the patent right may exist in name only in the later period of the patent validity period, which is unfair to the patentee and does not conform to the legislative purpose of the patent law.
Five, the principle of redundancy designation
The principle of repeated designation refers to the principle that when interpreting the independent claim and determining the scope of patent protection, the obvious additional technical features (that is, redundant features) recorded in the independent claim are omitted, and the scope of patent protection is determined only by the necessary technical features in the independent claim, so as to determine whether the accused infringing object (product or method) covers the scope of patent protection.
As a result of applying the principle of repeated designation, although the accused infringing technology lacks one or several technical features in the independent patent claim, it is still considered to be within the scope of patent protection, which substantially expands the scope of patent protection. Therefore, many countries do not adopt this principle in judicial practice, and a considerable number of people in China oppose its application.
China's Patent Law and its implementing rules have no provisions on the principle of repeated designation, but many courts in China apply the principle of repeated designation in judicial practice. For example, on September 29th, 20001year, the Beijing Higher People's Court issued the Opinions on Several Issues Concerning the Determination of Patent Infringement (Trial) to the Beijing No.1 and No.2 Intermediate People's Courts, which clearly stipulated the conditions and requirements for applying the principle of repeated designation. In China, it is controversial to judge whether the principle of repeated designation should be applied to patent infringement. One view is that at present, the level of patent applicants and patent agents writing claims in China is generally not high, and there are a lot of unnecessary technical features written into independent claims. If the application of the principle of repeated designation is completely excluded, the legitimate rights and interests of a considerable number of patentees will not be effectively protected, so it is really necessary to apply the principle of repeated designation in some cases. Another view is that the principle of repeated designation may still be meaningful in the early stage of the implementation of the patent law, but China has implemented the patent system for nearly 20 years. After the standardization of patent law, the scope of patent protection is determined by the claims. The use of repeated designation will destroy the openness and stability of claims, which is essentially a leniency policy for patent applicants or patentees, and will inject unnecessary uncertainty and confusion into the patent system. The use of redundant designation will hinder the improvement of the writing level of patent claims. Repeated designation will destroy the unity of effective (invalid) examination and infringement judgment in the patent system.
In my opinion, China has already established a patent application agency system, and obtaining the patent agency qualification requires a strict national unified examination. At present, the principle of repeated designation should not be applied on the grounds that it is difficult for patent applicants to write proper claims. In fact, many countries do not adopt this principle. First of all, the application of the principle of repeated designation violates the first paragraph of Article 56 of China's patent law: the scope of protection of the patent right for invention or utility model shall be subject to the content of its claim, and the description and drawings can be used to explain the claim. The claims in patent application documents are legal documents and the scope of rights, which should be certain and stable, otherwise it is unfair to the public. The use of redundant designation is actually to modify the patent claim, that is, to delete some words in the claim, that is, redundant designation. From the point of view that the claim is a legal document, it is illegal for the court to amend the claim. Secondly, the principle of estoppel is widely used in judicial practice in various countries, precisely to ensure the consistency of the scope of claims in patent examination procedures and infringement litigation procedures. There is a direct conflict between the principle of repeated designation and the principle of estoppel in patent law Applying the principle of repeated designation violates the suspicion of good faith in civil law. If many designations are filled, the inventor can add one or more redundant designations in the patent claim when applying for a patent, so that the scope of his claim will be relatively small and it will be easy to obtain authorization. In patent infringement litigation, the inventor can say that these redundant designations are redundant, thus expanding the scope of the claim, which violates the purpose of the patent system. Third, even if the patent applicant did make mistakes in writing the patent application and made repeated designation, we should not destroy the patent system because of the mistakes of a few people. Besides, anyone who makes a mistake will pay a corresponding price. Writing patent application documents should be done by people with legal and natural science knowledge. It is an activity with high knowledge content and cannot be ignored. Therefore, the application of the principle of repeated designation does more harm than good, and China should abolish the principle of repeated designation through legislation or judicial interpretation as soon as possible.