The protection scope of patent right refers to the scope of invention and creation involved in the legal effect of patent right. The scope of protection of the patent right for invention or utility model shall be subject to the content of the claim, and the description and drawings may be used to illustrate the claim. The scope of protection of the patent right of design shall be subject to the patented product of design shown in pictures or photographs.
The legal documents that determine the scope of patent protection are claims, specifications, photos or pictures of designs. Principle 56 of China's Patent Law stipulates the scope of protection of patents for inventions and utility models: First, the scope of protection shall be subject to the contents of the claims; Second, the specification and drawings can be used to interpret the claims.
(1) the scope of protection of the patent right for invention or utility model
According to Article 26 of the Patent Law, Paragraph 1 of Article 56 and Paragraph 1 of Article 20 of the Detailed Rules for the Implementation of the Patent Law, the following aspects should be paid attention to when determining the protection scope of the patent right for invention or utility model:
(1) The scope of protection of the patent right for an invention or utility model shall be subject to the contents of its claims. That is to say, the fundamental basis for determining the scope of patent protection for invention or utility model is the patent claim, which is the whole and substantive content of the patent claim, rather than individual words or wording. If a technical idea is not recorded in the claim, even if it is embodied in the specification and drawings, it still does not belong to the scope of patent protection. Thus, what is not recorded in the claims can be excluded from the protection scope of the patent right. The patent claim is the basic basis for determining the scope of patent protection, and the specification and drawings cannot be used as the basis for determining the scope of patent protection, but only occupy a subordinate position.
(2) As the basis for determining the scope of patent protection, the content of the claim must be clearly and accurately stated. In order to make a clear and accurate explanation of the technical features recorded in the claims and clarify the purpose and effect of the invention, we must refer to the specification and drawings. The specification and drawings have the legal function of explaining the claims.
(3) When determining the scope of patent protection, in order to clarify the meaning of a technical term, you can also refer to the correspondence and documents between the patent administration department of the State Council, China and the applicant in the process of patent application. Of course, these letters and documents cannot be used as the basis for determining the scope of patent protection, but what the patentee said in these letters and documents is recognized, promised and abandoned, and the patentee cannot go back on his word in the future. This is the so-called "estoppel principle".
(two) the scope of protection of the patent right of design
According to Article 56, paragraph 1 of the Patent Law, the scope of protection of the patent right for design shall be subject to the patented product for design shown in pictures or photographs. When determining the scope of protection of the patent right of design, we should pay attention to the following aspects:
(1) There are no claims and specifications in the application document for a patent for design, so the scope of protection shall be based on pictures or photographs, even if the size is slightly different, it will not hinder the determination of rights.
(2) The protection scope of the patent right for design is limited to the design used on the designated product when the patent right is granted, that is, others cannot use the same or similar design on the designated product.
legal ground
patent law of the people's republic of china
Article 26 Where an applicant applies for a patent for invention or utility model, he shall submit the written request, specification and its abstract, patent right and other documents.
The request shall specify the name of the invention or utility model, the name of the inventor, the name and address of the applicant and other matters.
The specification shall give a clear and complete description of the invention or utility model, which shall be subject to the realization of the technical personnel in the technical field; Attached drawings shall be attached when necessary. The technical points of the invention or utility model shall be briefly explained.
The patent claim shall be based on the specification, and clearly and briefly define the scope of patent protection.
For inventions that rely on genetic resources, the applicant shall state the direct source and original source of genetic resources in the patent application documents; If the applicant cannot explain the original source, it shall explain the reasons.
Article 56 Where an invention or utility model for which a patent right has been obtained is a major technological progress with great economic significance compared with the invention or utility model for which a patent right has been obtained before, and its implementation depends on the implementation of the previous invention or utility model, the patent administration department of the State Council may, upon the application of the latter patentee, grant a compulsory license to exploit the previous invention or utility model.
Where a compulsory license is granted in accordance with the provisions of the preceding paragraph, the administrative department for patent in the State Council may also grant a compulsory license to exploit the latter invention or utility model upon the application of the former patentee.