I. Scope of protection of patents for inventions and utility models
The scope of protection of tangible property can be determined according to the property itself, and since the patent right is intangible property right, it cannot be determined according to the object of the patent right itself. Article 26 of China's patent law stipulates that in the patent application documents submitted by the applicant, the applicant has the right to request that the scope of patent protection be specified. Article 20 of the Detailed Rules for the Implementation of the Patent Law stipulates that the patent claim shall specify the technical features of the invention or utility model and clearly and concisely specify the scope of protection requested.
There are three different principles for countries around the world to understand creditor's rights: the first is the principle of external restriction. According to this principle, the claim is the scope of patent, and it should be interpreted strictly and practically according to the words received by the claim. The scope recorded in the claims is the maximum limit of patent protection. Generally, the scope of interpretation and protection is narrower than that recorded in the claims. The United States adopts this principle. The second is the central definition principle. According to this principle, patent claims belong to the scope of patent protection. However, when interpreting the claims, we should not stick to the written records in the claims, but should take the claims as the center, comprehensively consider the purpose, nature, description and drawings of the invention and creation, and bring a certain range of technologies around the center into the scope of patent protection. Germany used this principle. The third is the principle of compromise. This principle holds that the scope of patent protection is determined according to the content of the claim, and the claim should be explained by the specification and attached drawings. Understanding the claim in this way not only gives the patentee fair protection, but also gives the third party reasonable certainty. This principle is adopted by the European Patent Convention and its member countries, and also by China's patent law. Paragraph 1 of Article 59 of China's Patent Law stipulates: "The scope of patent protection for an invention or utility model shall be subject to the contents of its claims, and the description and drawings may be used to interpret the claims." Patent protection of inventions or utility models indicates what kind of inventions and creations the patentee has exclusive and exclusive control over. Therefore, the scope of protection of the invention-creation patent right must be objective, clear and specific. However, compared with tangible property rights, there will be many difficulties in determining the technical scope of patented inventions. Moreover, in order to obtain more patents, patent applicants often adopt more extensive expressions. Therefore, in order to determine the scope of protection, what materials and methods are needed to determine the technical scope of patent right.
1. Information explaining the scope of patent protection
(1) claim. The scope of protection of the patent right for invention or utility model shall be determined on the basis of the contents recorded in the claims. Therefore, inventions that are only recorded in the specification but not in the claims do not belong to the technical scope of patented inventions or utility models; On the contrary, inventions that are not recorded in the specification but only recorded in the claims do not belong to the technical scope of patented inventions or utility models.
(2) Description and drawings. Article 59 of the Patent Law stipulates: "The specification and drawings can be used to interpret the claims". When the description of the claim is abstract and unclear, the specification and drawings can be used as reference materials to explain and explain the content and scope of the claim, and to define and limit its protection scope.
(3) background technology (known facts) when filing a patent application. Explaining the scope of the claim with the background technology (existing technology) at the time of patent application has two meanings: first, it is necessary to judge whether the invention or utility model applying for patent has the patent conditions, and the "application date" is the time standard. Therefore, if the relationship between the patent invention-creation and the technical subject at the time of application is a well-known element of the technical background, the well-known element must be excluded from the technical scope of the patent invention-creation. However, it should be pointed out that whether the elements are known should be judged according to the relationship between the elements and the purpose and function of the invention. For example, the purpose of the present invention is to prolong the refrigeration time while maintaining the original refrigeration temperature, so a germicidal lamp (b) is installed in the refrigerator (a). Although A and B are well-known elements in the invention, it is unknown to realize the purpose and function of the invention by adding A and B, so the technical scope of the invention is the combination of A and B, which is unknown. Therefore, there are no well-known elements that should be excluded from the present invention. Secondly, the patent invention or utility model should be clarified according to the background technology before the "application date". Therefore, when determining the conceptual terms in the claims, if the relationship between the patented invention or utility model and the technical subject at the time of patent application is unknown, it does not belong to the conceptual terms in the above claims. For example, the patent invention is a method for producing melamine from substances that produce melamine (method invention). After the "filing date", it is clear that urea can also be a substance that produces melamine, so the patent invention-substances that produce melamine does not include urea.
In addition, the relevant documents (or copies) in the published patent application process are not particularly confidential, and anyone can ask for and read them to understand their contents and clarify the scope of patent protection. Therefore, documents such as the description, modification, rejection notice, statement and opinions of the initial application can also be used as reference materials to clarify the scope of patent protection.
2. According to what method to explain the scope of patent protection?
When judging the protection scope of patent right according to the above information, we should not explain the protection scope of patent right in words, but hold the technical idea of the inherent protection scope of patent right requested by the patent applicant. An invention or utility model is different from a design, and the scope of protection of its patent right is limited to the same invention or utility model, but not as good as the invention or utility model. Therefore, the scope of patent protection should be extended to such an extent that things that are considered exactly the same in the patent law should also be included in the scope of patent protection. The means to solve this problem is the so-called "equivalence theory". "Equivalence theory" refers to that although the technical means slightly change the matters recorded within the patent right, it still achieves the same purpose as the patented invention or utility model, and the resulting "equivalence theory" includes: equivalence, equivalence method, design change, material change, detour method and incomplete utilization. For example, it is stated in the claim that nitric acid is used as a cleaning agent, and if it is replaced by sulfuric acid, the two are "equivalent". Oxidizing and then reducing the substances that constitute the invention conditions of the method patent is equivalent to attaching useless conditions, which is called "detour method". It is "incomplete utilization" to remove some unnecessary conditions from the constituent conditions of patent invention-creation, but still achieve the same purpose as patent invention-creation, and do not produce any new effects.
Generally speaking, mastering the theory of equivalence should be relaxed and moderate. When explaining the scope of patent protection, we should not only consider protecting inventors and interests, but also encourage inventors' enthusiasm for invention and creation. Considering the stability of the law, we should explain the scope of patent protection as clearly as possible to balance the two.
3. The scope of protection of different types of inventions
Inventions can generally be divided into product inventions and method inventions, and method inventions can be derived from practical inventions. Utility models are all products, so they can be classified as product inventions. Every invention-product invention, method invention and use invention has different scope of protection.
(1) Product invention patent protection. The scope of protection of product invention patents is relatively certain, generally including products with the same characteristics, structure and performance, regardless of the method used to manufacture the products. The protection of product invention patents should not be limited to the methods described in the manual, and any identical product manufactured by other methods will be beneficial to infringement. Because the product manufacturing method described in the specification is generally only used to illustrate the enforceability of the product, and should not be used to limit the protection scope of the product described in the claims.
It should also be pointed out that, in principle, the protection scope of the product invention patent right is not limited by the use described in the specification. According to Article 1 1 of the Patent Law, the patentee enjoys the exclusive right to manufacture, use, sell and import patented products. The word "use" should be understood in a broad sense, including all kinds of imaginable uses, and some unknown uses in the process of patent application and approval should also be included in its protection scope. However, if some unexpected or remarkable new uses of patented products are not obvious to ordinary professionals in their technical fields, these new uses should not be included in the scope of protection of product invention patents.
(2) The scope of the method invention patent. The protection scope of method invention patents (including manufacturing methods, operation methods and other invention patents) should generally include methods with the same characteristics, parameters and effects. Instruments, equipment, tools and equipment, etc. The invention used in the implementation of this method should not limit the scope of protection of the patent rights of this method.
(3) the scope of protection of utility model patents. The utility model can be a patented product (or method) or a non-patented product (or method). Where a utility model patent obtained by the former is exploited, an exploitation license contract must be concluded with the patentee of the product patent. Since the utility model invention is based on a known product (or method), the scope of patent protection can only be limited to the protection of the uses directly mentioned in the claims, and the description is limited to some illustrative explanations.
Second, the scope of protection of the patent right of design
Paragraph 2 of Article 59 of the Patent Law stipulates: "The scope of protection of a design patent shall be subject to the product with a design patent shown in a picture or photograph." This regulation shows that: firstly, the scope of protection of design patent right is represented by pictures or photographs. No unit or individual may copy the design, otherwise, it will constitute infringement. The so-called imitation refers not only to accurate imitation, but also to substantive imitation, that is, to imitate the novel part of design. Compare one with the other as a whole when judging. Where the design is slightly different from the patent, anyone thinks that they are similar or similar, that is, the former should be considered as infringing the patent protection of the latter. As for the method used to make imitation design products, it is not important. Second, when applying for a patent for design, the applicant is generally required to declare which kind of product the design is used on, and this patent right should be limited to the scope of its application; Using the same or similar designs on products that are not within the scope of design does not constitute infringement.
In addition, there are cases that do not belong to the scope of patent protection of design: ① not imitating a design for the purpose of sales; ② Apply 2D graphic design of 2D products to 3D products, and vice versa; (3) Put a copy of the design in a book.