Discussion On Dependent Right Claim

As can be seen according to the detailed Rules for the Implementation of PatentLaw article20about right requirements, the claims is not required to write thedependent claim, and compared with the independent claim, the dependent claimrequires a wider scope of protection. Therefore some people think that the dependentclaim is not important, is not indispensable. Regarding this, this article holds thenegative manner.This article adopts the method which the theory analysis and the case analysis areunified to conduct the research. Through exploration of the historical development ofdependent claim and analysis of content elements, then summarizes how the patentapplication documents, patent examination (or review), patent infringement litigationand patent revocation and invalid procedure play role in different period function, andcombines with case study for patent infringement litigation, whether the parties canchoose subordinate claims to determine the scope of protection to conduct theresearch and the discussionThis article besides the introduction, altogether divides into four chapters.Chapter I is the summary of the case. The chapter first describes the trial”Brilliant company v. Hua Yang company patent dispute” which is heard by NanjingCity Intermediate People’s Court. Second is the case dispute focal point, That is, if theparty concerned does not pass through invalid procedures, can reduce the scope ofpatent protection, select the dependent claims to determine the scope of patentprotection, Simultaneously this chapter has drawn out the thesis which it must involve＿the dependent claim. This chapter finally confessed the trial results heard byNanjing City Intermediate People’s court of the civil third court.The second chapter is an overview of the dependent claims. This chapter firstanalyzes the characteristics of the subordinate claim, throughout to the analysis of therelevant legal provisions; we can conclude that the subordinate claim of right formallyneeds to write after the independent claim of right. Then it analyzes the differencebetween the technical features and additional necessary technical features and classifythe dependent claim. Afterward it analyzes between the subordinate claim of right andthe independent claim of right relations, obtains that what the difference between theindependent claim of right and the subordinate claim of right is merely the patent rightrequest composition form and the extent of protection. It explores the American andBritish subordinate claims of the emergence and development of history, so that wecan more profound understanding the law rules of dependent claim.At last, thischapter analyzes the content elements in one subordinate claim, include technology,inventions, the purpose of the function, the effect, the purpose and the technicalcharacteristics and so on. The third chapter is subordinated the function of the dependent claim. We obtainthe conclusion that the subordinate claim is the further limit to the independentclaim,through elaborating the function of the subordinate claim from the patentapplication documents, patent examination (or review), patent infringement litigationand patent revocation and invalid procedure in different period function. Although thedependent claim to the scope of protection is smaller than the independent claim, thescope of patent protection for invention or utility model is more specific, more careful,and more stable. Therefore we consider that the dependent claim is also veryimportant, it should be taken full advantage of in order to play the role of the greaterprotection of patents.The fourth chapter draws the subordinate claim from judicial practice. Theauthor thoughts that the litigant chooses the subordinate claim to determine the patentextent of protection does not have the direct relation with this patent whether it haspassed through the invalid procedure or not. The reason why we conclude the aboveconclusion is that if parties can narrow the scope of patent protection independentlyand take the dependent claim as the judgment basis in the patent infringementlitigation.