"Ink cartridge case" refers to the China invention patent with the patent number of ink cartridge and the patent applicat
"Ink cartridge case" refers to the China invention patent with the patent number of ink cartridge and the patent application number of 00 13 1800.4. On June 30th, 2000, 10.3, Seiko Epson took the invention patent application number 99800780.3 as the parent case.
The claim in the patent publication is 12. When the invention entered the actual trial, Epson took the initiative to amend the original 12 claim to 66 claims, which is typical of no martial arts;
And only "semiconductor memory device" was recorded in the parent application, but "memory device" and "memory device" appeared in the claim when it was actively modified;
Epson also pointed out in the opinion statement that "'memory device' refers to the circuit board recorded in the specification and attached drawings and the semiconductor memory device arranged on it", and the patent was granted on June 23, 2004;
At least two problems should be paid attention to in the ink cartridge housing:
1. Is it out of range to change "semiconductor memory device" into "memory device" and "memory device"? Can the contents of the opinion book be used as the basis for revision within the scope?
2. Take the initiative to increase the number of claims. Do you want to pay a surcharge?
Next, we will answer the above questions after understanding the brief introduction of the case. The case is slightly complicated, and Xiaoding tries to simplify it.
Brief introduction of the case
The problem to be solved by the ink cartridge is to improve the printing quality of the printer. As shown in the figure below, the controller is connected with the print head through a flexible cord, and the ink cartridge is placed in the print head. In the prior art, it is proposed to improve printing quality by improving ink characteristics and printing driving mode.
In the background of this case, it is described that "it is unrealistic to improve the ink characteristics and print driving mode at the same time, because the printing equipment must be brought back to the manufacturer and the storage device for recording control data must be replaced". Therefore, a solution is proposed in the prior art, in which a semiconductor storage device is installed on an ink cartridge and connected to a controller through the ink cartridge, so that the ink quality and the driver can be changed;
In the background technology of this case, it is described that "the semiconductor storage device and the electrode connected to the storage device are installed on the ink cartridge ... but when the ink cartridge is replaced, the problems of poor contact of semiconductor data, data loss or unreadability are easy to occur" (the underlined part is the only place where "storage device" appears twice in the master case and the divided public text, both of which are background technology).
The technical scheme of the ink box shell is shown in the following figure, and a circuit board is installed on the back of the ink box;
A contact mechanism is installed on the rear side wall of a print head containing an ink cartridge, and one side of the contact mechanism is connected with a controller circuit board on the rear side, and the other side is connected with a circuit board with a semiconductor device, so that when the ink cartridge is installed on the print head mechanism, the controller can be electrically communicated with the circuit board on the ink cartridge, thereby realizing the reading of a print driver, and reducing the phenomenon of reading failure in the prior art;
Now, let's look at the invalidation process of the case. The invalid requester requests the case to be invalid by modifying it out of scope;
Invalid stage
The re-examination board believes that the key to judge whether this patent is modified beyond the scope is whether the "memory device" and "memory device" belong to the contents that can be directly and undoubtedly determined according to the "semiconductor memory device" in the original specification and claims;
Because the whole specification describes the invention of semiconductor memory devices, the original specification and claims do not involve other types of memory devices, therefore, "memory device" and "memory device" cannot be directly and explicitly derived from the original specification and claims, so they are not within the scope;
Epson believes that the word "memory device" is recorded in the background of the original specification, from which it can be directly and undoubtedly determined that "memory device" in this patent refers to "semiconductor memory device";
The Reexamination Board does not accept Epson's view that "the storage device in the ink cartridge is provided with a semiconductor storage device and an electrode connected to the storage device ..." The abbreviation of semiconductor storage device is recorded in the background art, and the storage device includes all other storage devices except "semiconductor storage device". The original specification and claims of this patent do not involve "memory devices" and other memory devices except "semiconductor memory devices", so semiconductors are stored.
With regard to memory devices, Epson believes that the "memory device" described in the related claims refers to the combination of "semiconductor memory device" and "circuit board" described in the original specification.
In this regard, the re-examination board believes that the memory device itself does not have this meaning, and the memory device appears in claim 12 of the patent publication, and claim 13 defines the memory device as: "The memory device includes a substrate, and a memory device is arranged on one surface of the substrate". It can be seen that "memory device" does not mean as claimed by the patentee. To sum up, claim 1-40 does not conform to the provisions of Article 33 of the Patent Law, and the ink cartridge case is declared invalid;
The patentee refused to accept the appeal, and the Beijing No.1 Intermediate People's Court upheld the invalid decision of the Patent Reexamination Board, but the patentee still refused to accept the appeal and appealed to the Supreme Court.
Opinions of Beijing High Court
The Beijing Higher People's Court held that it is necessary to pay attention to whether the modified technical scheme constitutes a new technical scheme when judging whether it is out of scope for modification.
The original specification and other parts of the claims all use "semiconductor memory devices", and only the background part records that "the ink cartridge is provided with semiconductor memory devices and electrodes connected with the memory devices". After reading the specification and the claims, those skilled in the art can determine that the patent uses a semiconductor memory device in the sense of a semiconductor memory device, and the "memory devices" in the schemes before and after the modification are all "semiconductor memory devices" (that is to say, the Supreme Court believes that modifying a semiconductor memory device into a memory device does not constitute a new scheme).
Moreover, Epson also pointed out in the opinion statement that storage equipment refers to semiconductor storage equipment; Although memory devices are of universal significance, including not only semiconductor memory devices, but also many different types such as bubble memory devices and ferroelectric memory devices, on the premise that they have been clearly defined as "semiconductor memory devices" in the background art, those skilled in the art will not understand them as "memory devices" as an upper concept, and the judgment in the first instance is wrong and corrected; (That is to say, those skilled in the art will only understand the storage device as a semiconductor storage device. Epson also pointed out in his opinion statement that the storage device is a semiconductor storage device, so it is not beyond the scope to modify the semiconductor storage device into a storage device. )
However, the modification of the storage device is different from the modification of the storage device, because the word "storage device" is not recorded in the original patent claim and specification, which belongs to the applicant's new content, and the unrecorded new content does not conform to the provisions of Article 33 of the Patent Law, so the modification of the storage device does not conform to the provisions of Article 33 of the Patent Law;
After hitting the Supreme Court, the result was that half of them met and the other half did not. Both parties refused to accept the case and applied to the Supreme Court for retrial (it was not the system of second instance and final adjudication at that time);
Supreme court view
The reason for the invalid petitioner's retrial is that modifying the semiconductor memory device into a memory device expands the scope of patent protection and should be invalid;
In this regard, the Supreme Court held that the scope of the applicant's request for protection can be expanded or reduced when the claim is modified, as long as it does not exceed the scope recorded in the original specification and claims;
Seiko Epson's modification occurred at the time of active modification, not at the time of examining the request for invalidation (invalid modification shall not expand the scope of patent protection), which is not illegal, so the invalidation reason of the retrial requester is untenable and will not be supported;
As for the modification of storage devices, the Supreme Court held that the terms in patent claims should generally be understood as ordinary meanings in this field. According to the records in Encyclopedia of China and Computer Japanese Vocabulary, the English translation of memory devices is storage or memory, that is, storage or memory. It can be seen that the common meaning of memory device in Japanese is memory device, so it can be considered that the common meaning of memory device in the technical field of this patent is memory device, and the common meaning is memory device;
However, according to the records in the dependent claims 13 and 14 in the authorization announcement text: "The memory device includes a substrate on which the memory device and a plurality of terminals are arranged", and the memory device here also includes a memory device, so it can be seen that the meaning of the memory device here is not a memory device;
In the opinion statement, Epson pointed out that "the memory device refers to the circuit board recorded in the specification and drawings and the semiconductor memory device arranged on it", but such an explanation can not be found in the specifications of the mother case application and the divisional application, so the opinion statement without any basis in the specification can not be used as the decisive basis for determining the meaning of the memory device (otherwise, the patent applicant can not be prompted to write the relevant contents into the specification as much as possible);
It can be seen that the memory device here can neither be interpreted as a memory device, nor as a "circuit board and semiconductor memory device" pointed out by Seiko Epson in his opinion statement, and people in the field cannot objectively determine the meaning of a memory device;
Therefore, the modified "memory device" is neither the content explicitly stated in the original application document, nor the content that can be directly and undoubtedly obtained by the technicians in this field after reading the specification and claims. Therefore, the modification of storage equipment does not conform to the provisions of Article 33 of the Patent Law;
Finally, the part about the storage device in the ink cartridge shell remains valid, while the part about the storage device is invalid;
Summary: In active modification, as long as the modification is within the scope, the protection scope of the claim can be expanded and narrowed. In addition, if there is no basis in the specification, the explanation in the opinion book cannot be used as a decisive basis;
Actively modify and increase the number of important projects.
When actively modifying, you can increase the number of claims and avoid paying extra fees. Although this practice is not martial, is it allowed by law? Allow!
Because according to the detailed rules for the implementation of the Patent Law, the applicant shall pay the application fee, publication and printing fee and necessary application surcharge within 2 months from the date of application or within/0/5 days from the date of receiving the acceptance notice; The application surcharge here includes the extra cost of claim and explanation, as shown in the following figure:
That is to say, the applicant shall pay the application surcharge within two months from the date of application at the latest, but the time for active modification of the invention is within three months from the request for substantive examination to the receipt of the notice to enter the actual trial, which has far exceeded the time for paying the surcharge, so no one cares whether you want to increase your rights.
It is said that the country set up this program to save money for applicants, but I didn't expect the Japanese to be so cruel that they had more than 50 rights at once. It is understandable that the applicant should do so. If the country didn't want you to do this, it would have closed this loophole long ago. You can try this if necessary.
Let's stop talking about active modification and overstepping. The legal part of this article and the previous article mainly refers to the Supreme People's Court (20 10) Executive Zi No.53 and No.53-1,and interested students can search and read it by themselves.