The protection scope of the patent right of design shall be subject to the design of the product shown in the picture or photograph, and the brief description can be used to explain the design of the product shown in the picture or photograph.
When determining the scope of patent protection for inventions and utility models, the interpretation of the scope stated in the claims is the key issue. From different standpoints and according to different interpretation principles, the scope of protection is different. According to the patent laws of various countries, when interpreting patent claims, three principles are mainly followed: central restriction principle, peripheral restriction principle and compromise principle.
Two conditions should be paid attention to when determining the protection scope of design patent right: 1) the design expressed in the picture or photo; 2) The scope of use of the design product specified at the time of patent authorization.
When determining the scope of patent protection for inventions and utility models, the interpretation of the scope stated in the claims is the key issue. From different standpoints and according to different interpretation principles, the scope of protection is different. According to the patent laws of various countries, the following three principles are mainly followed when interpreting the claims:
1, central limit principle
According to this principle, patent claim is the basis of patent protection scope. However, when interpreting the claims, we should take the substantive content expressed in the claims as the center, comprehensively consider the purpose and nature of the invention-creation, as well as the specification and drawings, and bring a certain range of technologies into the center of the protection scope. There is no need to insist on the required written record. German legislation has adopted this principle. This practice provides sufficient protection for the patentee, but for the third party, the scope of patent protection is in an unclear state, which is actually not conducive to fair competition.
2, the principle of peripheral restrictions
This principle requires strict interpretation in accordance with the written records of patent rights, and the scope of protection of patent rights cannot exceed the written records of patent rights. The specification and drawings cannot be used as the basis for determining the scope of patent protection, and can only be used for restrictive interpretation of the scope of protection in the case of unclear claims. The United States and Britain used to adopt this legislative model. Strict literal interpretation is beneficial to the third party, and a slight improvement may escape the scope of patent protection. According to this principle, high requirements are put forward for the writing of claims, but in fact, it is difficult to find a more suitable written expression of the upper concept of the scope of protection when applying for a patent.
3. The principle of compromise
According to this principle, the scope of patent protection should be determined according to the substantive content of the claim, but it is not strictly limited to the written record of the claim. In case of doubt about the technical features in the claim, you can refer to the specification and drawings for explanation. This principle has been adopted by the European Patent Convention and the patent legislation of its member countries and China.
In China, the scope of protection of design patent right is determined by two conditions.
First of all, it means the appearance design in a picture or photograph.
The second is the product range used by the design specified at the time of patent authorization. Similar products must be used to judge whether the designs are the same or similar.
patent law of the people's republic of china
Article 64 The scope of protection of the patent right for invention or utility model shall be subject to the contents of the claims, and the description and drawings may be used to explain the contents of the claims.
The protection scope of the patent right of design shall be subject to the design of the product shown in the picture or photograph, and the brief description can be used to explain the design of the product shown in the picture or photograph.