The Research Of Claim Construction In Patent Law

In recent years,the legitimacy of the patent law was faced criticism.Because the right of patent is a uncertainty right.Uncertain of patent right bring about that competitors of the patentee in the field and the other public is easily accused of infringement,so they will try to "go" when they meet the relevant patent technology.Similarly,inventors may also be worried about their rights infringed,so seek other ways to protect interests.That will eventually hinder the science and technology innovation.Claim explanation is the key to determine the scope of the rights protection,so the study have real value extremely.At the same time,the research of claim construction will discuss theoretical problems,such as the scope of patents,patent rights,and therefore this topic has theoretical significance.The core essential factor of claim construction is the claim,whether using center qualified or peripheral qualified and eclecticism,are the legal basis that ask for the scope of patent rights.Claim mainly divides into product claims and the method claim,and its written form is usually programmed pattern,namely,in the form of independent claim and subordinate claims.Claim has right defined function,the public notice function,warning function and internal evidence function,etc.For what is the claim construction,there are two different views:one is to that claim construction as literal interpretation method and equivalent doctrine jointly determine the scope of the patent right;the second is to that claim explanation is the new rules of interpretation as a substitute of equivalent doctrine.This paper will try to construct a better and more ideal rules determine the scope of the patent right from the angle of claim construction.The theoretical basis of claim construction include the theory of value,and the patent system economics related to the scope of rights,and the basic of patent law policy such as invention market theory.Through the study of the theory mentioned above,constructing the claim explanation rule has a more clear direction and train of thought,which claim construction not only play a role of checking for dispute,but also more important is to determine reasonable,moderate width and clear rights protection,to achieve the interests balance between the patentee and the social public.At the same time,whether the invention is good for society should also be as the important indicators for determining rights width.The object of claim construction is the claim,and its value goal is to determine the scope of the modest rights protection.At present,in the case of applying equivalent principle,due to exceed literal meaning to explain and identify the scope of protection,thus uncertainty of the rights is inevitable.Researching claim construction rules is to overcome the defect of uncertainty right.uncertainty of the patent right give rise of many harms,such as the verdict unforeseen,patents fishing,patent shrubs,etc.The reasons of rights uncertainty include:the difference between tangible property and intangible property rights,way of writing,patent censorship,and so on.Only in-depth research for scope of protection of the rights make reasonable system arrangement about the claim explanation.Claim explanation rule was originally formed in the judicial precedents in the United States.The specific rules produced in the judicial practice has important guiding significance to build the right rules of interpretation system for us.To build a claim rules system,it is necessary to compare and research to interpreter,evidence rules and so on.In Markmaan v.Westview Instruments,Inc.,claim constructiong was established.This paper adopts the method of empirical research,and researches claim construction based on comparative study of related cases.By comparative study and analysis,it is concluded that foreign claim explanation rules still has many problems at present,such as,how to measure "common technical personnel" standard;who explain to patent right;what the position and role between evidence of internal and external evidence,and the order of evidence.These problems restrict to operate and develope in claim construction.In our country,the claim construction has not yet found in patent law at present,and relevant regulation only referred to the judicial interpretation.It is as a interpretation way to determine the scope of the patent right together with the equivalent principle.At the same time,the few rules itself also exist problems,such as the order of reviewing evidence,etc.On this basis,the claim explanation rule must construct from the following several aspects:claim explanation should be deemed as logic starting point of defining scope of rights,and establish the basic principles of claim explanation;To build a claim explanation rule system,reviewing influence factors between narrow protection and broad rights;To perfect our claim explanation of the standards and methods and other system related to claim explanation.