Research On Examination And Infringement Of Inventions Of Product Defined By Their Uses

Invention of product defined by use is a special type of patent claims, which isessentially a product claim and is characterized by use itself. With the development ofthe patent system, in practice this type of claims has been used more and more. Suchclaims have got more and more attention at home and abroad to provide with anumber of specific provisions and requirements in patent examination, but there arestill different views and requirements.Since China’s patent system started late, the theoretical basis and practicalexperience on this type of product claims are lacked, mainly in: in the patentexamination process, whether the product claims defined by their uses have noveltyand non-obviousness when they are compared with same product claims not definedby uses as well as with same product claims defined by other uses; in infringementprocess, how to determine the scope of patent protection of the product claims definedby their uses, and whether the product with different use falls within the patentprotection. To solve these problems, Japan, Europe and the United States has differentrules and views in the patent examination and Infringement. However, China hasmuch fewer rules in the patent examination of this type invention and judicialinterpretations of infringement in determining the scope of patent protection of this type invention, which resulting we may encounter some problems in the patentexamination and infringement.This thesis intends to use product inventions defined by their uses as a researchobject in the patent examination and infringement. This thesis firstly discusses theconcept and characteristics of invention of product defined by use, illustrate the needfor this type of invention and controversy and introduces the requirements andregulations in Japan, Europe and the United States. In the second chapter, this thesisdiscusses the examination on novelty and non-obviousness of this type of inventionaccording to China’s existing laws, regulations, departmental rules and regulations,and compares with the examination on novelty in Japan, Europe and the United States.In the third chapter, this thesis discusses how to determine the scope of this type ofinvention, and discusses in the new uses of known products, new products and theiruses, and two theories. In the forth chapter, this thesis analyzes the similarities anddifferences of this type of invention in patent examination and infringement. In thefifth chapter, this thesis provides with some advices of the standard of examinationand determining the scope of protection in infringement, including more specificstandards and regulations in examination of novelty and non-obviousness as well asconsistency with the patent examination and determining the scope of protection.