On The Patent Claim

This article is a systematic study of patent claims.Patent claims refer to the content that the patentee claims to protect his inventions and creations.This content needs to be based on the description and written in the claims by the applicant,which as the written basis for defining the scope of patent protection.It is an important part of patent documents.Today,how to interpret the claims directly determines the trend of patent litigation.Almost all theoretical works and judicial precedents involve patent claims.However,the patent claims themselves have never been scrutinized seriously.This is the problem.The theory of claims,as a science,has been completely forgotten.This started from forgetting history,which made positivism prevail.Theoretical research on claims has become increasingly thin and convergent,so that few people have explored why claims are so important today.Another disadvantage of the convergence of theoretical research is: The inner level of the interpretation of claims has been ignored,and many methodologies have been used in practice but have not been rectified.For this reason,it is necessary and urgent to carry out theoretical research on claims.In addition to the introduction,this article has 5 chapters with 220,000 words.Chapter 1describes the historical evolution of claims.The British Monopoly Act of 1623 was the source of the budding ideology of claims,and it was also the basis for requiring inventors to clearly describe the object of patent protection.At first,all the descriptions of the invention in the specification belonged to the protection object of the patent right.Later,a judge noticed that the protection object of the patent right was probably only the part of the invention that was different from the prior art.This view became a common law basis through a famous British case and spread to the United States.The claims originated in the United States.William Sutton,the first director of patent affairs in the United States,repeatedly asked applicants to state in writing the difference between the invention and the prior art in the specification,and the embryonic form of the claim appeared.Justice Joseph Story of the United States Supreme Court ruled the patent right the scope of patent protection is limited to the written claims in writing by the patentee.And the early legal practice of the claims appears.Positivism is the background color of the practice of American rights.In the middle and late 19 th century,the claims written in the specification became the primary concern of judges and juries.The specification and the claims were gradually separated.How to interpret the claims has become an urgent problem in patent judicial trials.It is generally believed that the establishment of the peripheral limitation principle in the 1870 s in the United States is a common way for modern countries to interpret claims,but it is easy to overlook the many disputes faced by the peripheral limitation principle.Chapter 2 discusses the philosophical basis of patent claims.At present,the understanding of claims is based on the framework of positivism,which answers the question of how to treat patent claims.This has had certain positive effects in the history of patents,including the emphasis on empirical facts,the rejection of metaphysics,and the requirement for the accuracy of the language description of claims.However,if positivism is indulged in its influence on the application of the law of claims,it will sever the connection between the claims and the invention,and pay too much attention to the language rather than the technical features recorded in the claims.In fact,in the postmodern era where positivism is gradually weakening,most countries are wary of the negative impact of positivism.The interpretation of claims should not be limited by the strict literal meaning of the language.It is a typical example.However,this reality is not well reflected in the theory of patent claims.Once the problem involves the theoretical basis,nature,and characteristics of claims,positivism is still entrenched.The patent claims need to be "opened".Philosophically,Heidegger's ontology updates people's understanding of cognitive existence.It explains well why the connection between claims and inventions cannot be easily separated,but allows a certain degree of differentiation.Wittgenstein's analysis of language reminds people that the meaning of language stems from its usage,which is arbitrary.However,the propositions(technical features)of language composition are verifiable.The key to a correct understanding of the proposition is not to precisely define the meaning of each term,but to stop over-analyzing the proposition at the appropriate time.Chapter 3 analyzes the function of patent claims.Today,the legal application of claims is regarded as the basic paradigm for dealing with the patent infringement.This is a basic description of the current status of the patent claims by scholars from various countries,but few studies have pointed out why claims enjoy such an important legal status.This is what this chapter intends to add.First of all,the patent claims reduces the cognitive cost of judges in defining the scope of patent protection.The "thought/expression dichotomy" and "substantial similarity" that have successfully resolved the scope of the protection of work rights cannot be transplanted well into the patent law,because it is difficult for judges to explain the essence of inventions and creations.This forced the judge to focus on the description of the invention.Moreover,the key to how to apply the claims is not to adhere to a certain interpretation principle,but whether the three elements are coordinated with each other:the way the applicant drafts the claim,the claim drafting specification compiled by the Patent Office,and the method for the court to interpret the claim.Second,the patent claims has improved the implementation of the patent law.The patent claims can provide a comparable basis for market entities to evaluate the value of patents and facilitate the development of patent market transactions.Claims limit the scope of protection that an invention can seek.It allows multiple patents to be accommodated under the same technical subject.By weakening the monopoly effect of a single patent right,it optimizes the effect of the patent system in allocating industrial interests.However,in order for a claim to perform the above functions,it needs to meet two requirements: first,the drafting of the claim should be clear and concise;second,drafting the rational person standard of an ordinary technician in the field,and establishing a claim interpretation Acceptable framework.Chapter 4 is the deconstruction of the interpretation of patent claims.This is the most frequently discussed issue with regard to claims.Today,talking about the interpretation of claims will involve a complex system of rules,which is the state in which the interpretation of claims has not been expanded.First of all,contrary to the first impression,the basic model of claim interpretation is very simple.It only needs to answer two questions:(1)How to choose the basis for defining the scope of patent protection;(2)How to deal with the language recorded in the claims.Among them,the peripheral limitation principle needs to use the claims as the direct basis for infringement determination,limiting the scope of patent protection within the scope of the claims.The central limitation principle is not restricted by the above conditions.Secondly,in order to expand the ability of these two basic models to resolve actual legal disputes,judges have developed various theoretical tools.But in fact,most of them are extensions of legal interpretation methods in claims.Regardless of whether you choose the central limitation principle or the peripheral limitation principle,these methods will be used to derive different theoretical tools.Finally,choosing different legal interpretation methods will lead to different legal application results.The patent law can determine the basic model of claim interpretation,but it cannot determine the judge's choice of interpretation method.The result of allowing judges to freely choose for a long time is the uncertainty of the results of the application of the law.Therefore,judicial policy makers need to choose between a formalist approach and an eclectic approach.The difference between the two lies in whether the literal meaning of the language is strictly followed,and whether the judge is allowed to intercept the input of technical information.Chapter 5 discusses the development of our country's claims.The renewal of theoretical tools will change some existing views.This is not consistent with most existing views.At present,the patent claims in our country faces three major dilemmas: first,how to choose the interpretation path of claims;second,how to respond to the challenges of emerging technologies;third,how to optimize the theory of claims interpretation.This needs to be alleviated from three aspects: First,the courts of our country need to maintain the policy orientation of the eclectic approach,and while adhering to the status quo,strengthen the judicial review of patent validity.Secondly,it has not yet been possible to adjust the system structure of claims to eliminate the adverse effects of the patent law's adjustment of biotechnology and digital technology.However,some thorny problems should be solved by controlling patent monopoly and restraining patent bubbles.Finally,it is necessary to properly choose the starting point and ending point of patent claim interpretation,correctly understand the role of language,and optimize the applicable standards for those of ordinary skill in the art.