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.
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.
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.
1. application: the applicant submits a written application to the patent administration department of the State Council;
2. Preliminary examination: After receiving an application for a patent for invention, the patent administrative department of the State Council, after preliminary examination, finds that it conforms to the provisions of the Patent Law, and immediately announces it after 18 months from the date of application. The patent administration department of the State Council may publish its application at an early date upon the request of the applicant;
3. Actual examination: within three years from the date of application, the patent administration department of the State Council may conduct substantive examination of the application according to the request made by the applicant at any time; If the applicant fails to request substantive examination within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn. The patent administrative department of the State Council may, when it deems it necessary, examine the application for a patent for invention on its own.
4. Authorization: If the application for a patent for invention is not found to be rejected after substantive examination, the patent administration department of the State Council shall make a decision to grant the patent right for invention, issue a patent certificate for invention, and register and announce it at the same time. The invention patent right shall take effect as of the date of announcement.
1. application: the applicant submits a written application to the patent administration department of the State Council;
2. Examination: China implements a preliminary examination system for utility model patent applications. In the process of preliminary examination, the examiner will issue a notice of correction for formal problems in the application documents and a notice of examination opinions for obvious substantive problems, and the applicant will reply to the notice.
3. Authorization: After passing the preliminary examination, the examiner will issue a notice of granting the patent right. After receiving the notice of granting the patent right, the applicant needs to go through the following registration procedures: pay the patent registration fee, the annual fee for authorization, the printing fee for the announcement and the stamp duty on the patent certificate within the prescribed time limit. The applicant can obtain a patent certificate after going through the registration formalities.
patent law of the people's republic of china
Article 2 Inventions and creations mentioned in this Law refer to inventions, utility models and designs.
Invention refers to a new technical scheme proposed for a product, method or its improvement.
Utility model refers to a new practical technical scheme for the shape, structure or combination of products.
Appearance design refers to a new design with aesthetic feeling and suitable for industrial application based on the shape, pattern or combination of products and the combination of colors, shapes and patterns.
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.