| The influence of the patent system in the modern sense on the science and technology or innovation is based on the incentive model of the property right.The reasons of the rationality of patent system can be found in this assumption in the macro sense.Although patent authorization provides obligees with the publicity of the legal ownership of the patent technology,in essence the patent right is a forbidden right.The purpose of inventors' authorized rights is not only to implement the incentives of the technical scheme,but also to delineate of the prohibition scope of the certain technology plan.The conclusion of a patent protection only lies in the case of infringement judgment,so the ultimate utility or strength effect involving the technical protection of patent system is decided only by the judgment of patent infringement and directly reflected in the specific case of the designated patent protection scope.The basis of modern patent system is a set of precise file system,which defines the scope of protection of patent rights throughthe claim of rights and the passage rule is the compromising rule which uses the explanatory memorandum to explain the claim of rights.The scope of the protection of patent rights delimited by the judicial practice not only is related to the relevant industry groups,but also will affect all the links from the patent application and even the adjusting strategies of some related industries.From the the operation of the individual case,patent application,examination,authorization and even protection are carried out around the patent claims;thus,the implementation of the patent system depends essentially on the claim constructions of each link of the complex applications.Under the present splitted dual systems of parallelization of patent administrative authorization and civil tort procedures in China,the announcement of the invalidation procedure of the patent administrative authorization and subsequent administrative litigation often makes the infringement decision procedure lag behind the ordinary civil disputes.The technology development makes the technology update cycle becomes shorter,so the lagging behind and delay of the procedure cannot meet the demands of obligees' protection expectation.Thus,the transformation procedures of administration and judicature has been widely concerned and the focus of attention of the present splitted dual system of patent system is the simplification of administrative procedures or the introduction of invalid defense in judicial proceedings.The scope of patent protection needs to be delimited in administrative and judicial procedures with the technology interpretation of literal expression;however,the law of the two procedures is completely separated.There are many complex links and multiple subjects from the patent application to the infringement decision,and often the time has no necessary continuity,so each link is isolated and the conflict and contradiction is inevitable.In general,the patent licensing terms of the definition of invention essence—the so-called patent substantive conditions,are not directly applicable in the judicial practice of the infringement decision in China.The principle of Estoppel and the principle of prior art plea constitute an indirect connection point of the law application between the two procedures.However,in the new judicial practice,the patent licensing terms are directly applicable to the claim of rights in the infringement determination,and the conclusion are drawn on this basis,which is a breakthrough of the traditional splitted dual system.The way of this application starts from No.1544 th civil ruling(2012)and from then on there are also new cases to be developed.Although the above cases have made a breakthrough to lengthiness of dispute resolution,created a path to solve civil disputes over intellectual property rights and explored the possibility of applying the substantial conditions into patent infringement disputes,it also leads to the problems such as the res judicata of the case,the inconsistency of the understanding of the substantive terms of the patent between judicature and administrationUnder this background,the collation,stipulation and coordination of the scope of the patent protection under the the present splitted dual system is particularly worthy of attention,but at present a breakthrough point of this study is scanty.The role of patent substantial elements in the patent infringement as a point of penetrating is discussed in this thesis with the research of the deep conflict and coordination path ofclaim construction under the present splitted dual systems.In this thesis,the concept and importance of claim construction is anazlyzed from the following two angles respectively: many factors concerning the isolation of description and the basic logic difference of claim construction between administration and judicature.From the review and reflection of relevant theory of claim construction,this thesis also argues that the basic purpose of claim construction is to restore the essence of technology and clarifies,at the same time,the relationship between claim construction and different procedures.Further analysis is made in the relationship between patent substantial elements and description,and the binding effect of patent licensing to the scope of patent protection in the infringement decision.The coordinating path of administration and judicature is analyzed based on the characteristics and implementation model of the subjective standard of claim construction in the two procedures and claim constructions of special types.Chapter One,starting from the basic backtracking on the patent system,reviews that the patent system,using the technology protection for purpose,gradually forms the description system in which the protection objects are based on the literal expression,from the origin of the system when monopoly representation is focused on to the technical content--oriented modern patent system.Based on the development of the system and the inertia of the self—strengthening,and along with the unceasingly increased practice of patent application and authorization and disputes,selecting a specific systematic file system becomes the only feasible choice of interactive development of this system and the social reality;however,the complex file system derived from that needs to follow special and difficult rules from writing to interpreting.There exist the technical facts and the law in the specific rules of the patent system,which is difficult to distinguish.Therefore,on the one hand,the patent protection is increasingly independent of the technology and towards the protection of the written words of the description;on the other hand,the definition of the scope of patent protection becomes a difficult problem in the patent system.Under this premise,this chapter summarizes the importance of claim constructions to the patent system in the individual cases.Furthermore,the contradiction between the system of patent infringement decision and administrative jurisdiction procedure under the the present splitted dual system is concluded in practice and divided into the direct conflict of rules on the surface,applicable standards differences and deep-seated conflicts.The essence of the above plight lies in the cognitional differences including the internal logic of descriptions brought about by the isolation of applicable law,the thinking process of the interpretation of descriptions and even the status and roles of components of descriptions.Besides,the basic dimension of understanding the patent system combed through the process of the formation of the descriptions and the evolution of the patent claim status can be used as a background of understanding of description.On this basis,combing with all kinds of definitions of claim constructions,combining with the different tasks and thinking characteristics of administrative and judicial procedures,the author of this thesis summarizes and concludes that claim construction is a process of making clear and fixing the technical content of literal expression by comparison and contrast based on different objects and logical thinking process in the authorized approval and infringement decision procedures.Further,the substantive limitations and the subsequent impact of the above cases are analyzed from the breakthrough and innovation of the recent judicial practice and related cases,In Chapter Two,first of all,from the basic structure of the description system,the author of this thesis analyzes that the forming process of the description is a process from the refinement and generalization of the specific facts to the scheme of taking writing system as a carrier and the reasons are summarized in combination with this process that claim of rights and description can not reach the ideal state including: the inherent defects of literal expression,the expression gaps between words and technology,the inevitable fallacy in the process of “induction” and the information loss in the course of multi-link communication.Secondly,the author of this thesis analyzes the basic theories on the scope of patent protection in the past such as contract theory,natural rights theory,motivation theory and contribution theory,evaluates a new model emerging in recent years of the interpretation of patent protection system such as economic analysis and policy leverage,and concludes that these theories and models can only demonstrate the rationality of the patent system and play a role in such macro issues as determining the object of patent protection,while there is no use or space of guidance for the rationality of claim constructions in the micro case and the definition of the scope of patent protection.Furthermore,as is discussed above,the forming process and system constitution of description system lies in the technical facts expressed in words and the basic purpose of the patent system is to use protection as the means to promote technological progress.Owing to the the non-ideal state inherent in descriptions in reality,the pure literal interpretation is inevitably unable to achieve stable expectations because of its ambiguous words and the multiplicity of semantic interpretation so that the basic purpose and basis of claim constructions is to restore the essence of technological invention.Finally,under the background of the administrative approval and infringement decision and even the operation system of the whole patent system,based on different tasks and characteristics of each program,the author of this thesis demonstrates the methods and timing of claim constructions and the consistent problem of different procedure under the present splitted dual systems and concludes that the surface consistency of administrative and judicial should not be adhered to and claim constructions of each link should be self-consistent in the whole application system.In Chapter Three,on the basis of the above analysis,the author starts with the problems in the existing judicial practice and focuses on the role of the patent substantive elements in the infringement judgment.First of all,starting from the patent application,authorization and the various subsequent programs and the forming process of descriptions,the author of this thesis analyzes the relationship between the principle of Estoppel and patent file system and clarifies the scope of descriptions which is used as claim constructions.Secondly,the author of this thesis analyzes the meaning of the sufficient disclosure of description and its function in the process of administrative authorization and approval of patents,demonstrates the relationship between the terms and descriptions from the internal and external aspects and confirrms the binding forces of this term to restraining the clarification of patent and the scope of patent protection in different procedures under the the present splitted dual system,combining the judgment factors in the judicial practice of infringement decision.Meanwhile,the author of this thesis also analyzes the role of invention purpose in the decomposition and definition of claim of rights,combining with the applying process of doctrine of equivalents,starting from the practical problems of patent infringement decision such as the correction of literary contents,the revision of obvious errors and the judgment of the doctrine of equivalents in judicial practice,demonstrates that the application of the clauses of “Revision cannot exceed the scope” and “Claim of rights gets the support of descriptions” of the patent substantive elements to defining the terms of claim of rights,drawing the line of literary contents and restraining the boundaries of more official interpretation and verifies the role of the traditional patent substantive elements applicable only in administrative procedure to the judicial process.Chapter Four is focused on the subjective standards of the claim constructions —“person skilled in the art”.First of all,using the definition and role of this abstract standard as the starting point,the author of this thesis analyzes its current situations and deficiencies of realization paths in different programs under the present splitted dual systems and points out the importance of this subjective criterion in coordinating different procedures.Secondly,from the perspective of the basic definition of this concept,the author of this thesis clarifies the certification of “person skilled in the art” and cognitive behavior,demonstrates that the existing form of the burden of proof obscures the essence of this concept so we should proceed from the two layers of the basic definition,distinguish elaborately and strip away technological fact determination,technical judgment and legal judgment and confirms,on the basis of the specific case,the proof and implementation path of the subjective standard.Finally,on the basis of the further clarification of the fallacy of the problem in practice and the analysis of the substantial causes of realistic plight,combined with the elaborate distinction of logic process in patent cases,the coordinating operation methods are analyzed of various facts-ascertaining mechanism.In Chapter Five,the claim of rights of specific types and special technical characteristics are explained and the coordinating path of the scope of patent protection is delimited under the background of the present splitted dual system.Firstly,the author of this thesis analyzes the differences between judicial and administrative rules to meet the demand of the functional claim of rights,which receives more attention with the development of technology.This thesis argues that the previous studies only make the two rules literally consistent,ignoring the harmony of the ultimate goal and the substantial difference of judicial and administrative system,which is not beneficial to the difficulties in practice and the solution to the difficulties.The complexity of of characteristics contrast of infringement judgment,various consideration factors of claim construction,the uncertainty of thinking process and the lack of the strict definition of functional characteristics in China—these four factors have more influence on the process and conclusion of the specific case judgment than the seeming contradictions of the two above mentioned rules.On this basis,through the analysis of self consistency of the related provisions in other countries,the author demonstrates that appropriate solutions are seeked based on the practice of infringement judgment,the thinking of patent substantial elements in the case is reconcluded and elaborately analyzed so that rationalized explanation path can be got between the two extreme solutions of refusing to protect or being invalid.Secondly,the author of this thesis analyzes,in the the judicial practice and administrative authorization procedures,the common differences caused by specific types of claims,such as the claim of composition,use claim,Markush claim,and based on the different procedure concepts and probes into the causes of the different understanding of judicature and administration under the the present splitted dual system.Meanwhile,the author sums up the incongruity of the conclusion of the case caused by the difference of knowledge of such special way of the claim of rights in different programs as the theme of claim of rights and numerical range limit and analyzes the understanding error and the essence of the internal logic of the above phenomena.On this basis,the author clarifies the relationship between the rules of decription writing and patent substantial elements and summarizes the coordination way of the above mentioned special content in the two types of programs from the perspective of description systematization. |
PDF Full Text Request