A Probe Into The Related Problems Of Product Rights Characterized By Methodological Features

Product-by-process claim (PBP Claim) claims for protection of a product, whosedefining characteristic is a process of making it. It has been controversial about theeffect of process features in this kind of claim, in the judgment of novelty andinventive step, together with determination of the scope of protection. StateIntellectual Property Office of the P.R.C, an administrative department for patentunder the state council, which is in charge of reviewing patent applications,formulates the “Guideline for Patent Examination” and interprets PBP Claim as: thesubject matter of the product claim defined by the features of process is still theproduct, and the actual definitive effect of the features of process depends on whatimpart they may impose on the claimed product. And based on Interpretation of theSupreme People’s Court on Several Issues concerning the Application of Law in theTrial of Patent Infringement Dispute Cases，the People’s Court make the explanationas all the processes features of claims should be considered, and the process ofproduct features constitutes a limitation of the product.Different countries and organizations in the interpretation of "PBP claim" are heldvaries, mainly in two views "product limited method" and "all limited method". In theUnited States, such claims at different stages of interpretation are different. The U.S.MPEP for "PBP claim" explanation has been using the "product limited method" view,and the U.S. Court of Appeals for the Federal Circuit (CAFC) in2009judging suchclaims as consolidated and unified, and using the "all limited method" view. EuropeanPatent Office formulates the “Guidelines for Examination” as the "product limitedmethod" view. The European Patent Office Appeals Board establishes case law andalso formulates the Guidelines for Examination as the "product limited method" view.I believe that our country should take different views in different stages. On the onehand, the process features should be directly written in a method claims. On the otherhand, for existing "PBP claim", maintaining "product limited method" view in patentexamination stage, and taking "all limited method" view in the patent trial stage toreduce as much as possible "PBP claim" protection scope, in order to guide theapplicant to use structural features in the product claim or directly write a processclaim.In this paper, putting forward specific solutions for PBP claim, and analyzing therationality of current situation, thus benefit for patent holders and the public interest.