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Legal Research on the Determination of Extent of Patent Protection

Author: ZhangHongBing
Tutor: GaoHua
School: Huazhong University of Science and Technology
Course: Legal
Keywords: patent right protection scope the claim explanation principle
CLC: D923.42
Type: Master's thesis
Year: 2011
Downloads: 64
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Abstract


As the cornerstone of patent system, the protection scope of patent as the center of application, examination, grant and infringement judgement of patent right bears most importance. Hence, the determination of patent protection scope turns into the core issue as well as the difficulty and important part. The purpose of this paper is to sort through the relations existing between every parts of patent protection scope and find out the functions of these parts in deciding the patent protection scope. The logical steps of defining the protection scope of patent are as following: first, determining the scope according to claim, more specifically, the scope means the technology characteristic scope presented in the claim; second, the problem is boiled down to how to define the content of the claim, namely the interpretation of the claim; finally, when the patent infringement occurs, in a bid to safeguard the interests of right holder and seek a balance between the right holder and society, we can use the equivalent doctrine to expand the scope and employ the estoppel principle and state art as defense to limit the scope. Explanations for Several Issues on the Application of Law in Trying the Cases of Patent Infringement by Supreme People Court promulgated in December, 2009 further perfect the patent system. Following this logical sequence, combined with this judicial explanation, this paper conducts a systematic and comprehensive analysis to the determination of patent scope and proposes the author’s perceptions and advice to the consummation of determination of patent scope and relevant system Five chapters compose this paper:The first part is an overview to the determination of patent protection scope. Section 1 analyses the necessity to determine the patent scope from two points; section 2 illustrates the principles in determining the scope which are three principles to explain the claim: peripheral limitation principle, center limitation principle and compromise principle. The compromise principle adopted in China is analyzed in this part.The second chapter analyses the foundation for determining the scope, namely the claim. Section 1 discusses the two classification of the claim from two aspects; Section 2 analyzes several special claims: claim to products limited by methods, claim to products limited by usage characteristics and claim to products with functional features.The third chapter studies on the explanation to the claims. Section 1 treats the function and effectiveness of inside evidence for explaining the claim, the inside evidence includes description and attached figure, other claims and patent examination files; section 3 treats the function and effectiveness of outside evidence for explaining the claim, outside evidence includes reference books, text books, public reading materials and the normal understanding of people having ordinary skills in this art.The fourth chapter analyzes the principles for expanding and limiting the patent scope. Beginning with three aspects, section 1 discusses the doctrine of equivalent; section 2 analyses the estoppel principle restricting the patent scope; section 3 analyses the defense principle of state art, which is a kind of limitation to patent scope.The fifth chapter illustrates the author’s suggestions to the determination of China patent scope. These advice are concentrated on the perfection from legislation and how to apply laws in judicial practice.In conclusion, this article points out that the legal system for determining the patent scope needs to seek a balance between the expansion and limitation of the scope. It also lays stress on taking the claim as quasi principle and treating the explanation of the claim and the expansion and limitation of the claim as the basic links in determining the patent scope.

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CLC: > Political, legal > Legal > Chinese law > China and France > Intellectual property rights > Patent law
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