A Study On The Protection Scope Of A Closed Claim In The Composition Patent

With the increase of invention patents in the medical and chemical fields, there havebeen an increasing number of relevant patent infringements in the recent years. And a closedclaim has become common in the invention patent of medical and chemical fields.A closed claim belongs to a special patent right and it is in correspondence to the openclaim. And a closed claim should use the transition phrase of “consisting of...”, and this shallnormally be interpreted as the statement that the composition does not include any componentother than those that have been set forth in the claim. According to the provisions of theGuidelines for Patent Examination (hereinafter referred to Guidelines), the protection scope ofa closed claim is limited to the components that have been set forth in the claim. However,there is still considerable dispute over the protection scope of a composition closed claim inthe juridical practice. And there are no provisions about a closed claim in the Patent Law andits regulations for the implementation, and the Supreme Court has not elaborated theprotection scope of a closed claim in its relevant judicial interpretation. Therefore, courts cansolely refer to the provisions of the Guidelines for judicial interpretation in the juridicalpractice, which leads to different judicial interpretations about the protection scope of thesame closed claim in different courts and even opposite verdicts about the same closed claim.This undermines the judicial authority. Therefore, it is of great significance to carry out astudy on the protection scope of a closed claim in composition patent.The dissertation can be divided into five chapters.Chapter one is the case review. The chapter presents a series of patent infringement casesso as to prove the importance of this study.Chapter two is the introduction about the case focus and the relevant problems. Thescope of patent protection and the verdicts of relevant patent infringement cases are directlyinfluenced by whether or not “not including any component other than those set forth in theclaim” is regarded as an implied technical feature in the composition closed claim.Chapter three is an introduction about a closed claim and the reasons for its existence.First and foremost, the chapter presents the definition of patent claim and closed claim. Thefollowing part is the presentation of the closed claim origin and development and an analysisof the reasons for its existence. Last but not least, the chapter introduces the application of aclosed claim and the characteristics of its application in different fields. Chapter four is the definition of protection scope of a composition closed claim. Initially,the chapter presents the protection scope of a patent and a closed claim. The second partshows how the protection scope of a closed claim shall be defined in reference to the analysisof the three phases in the patent protection scope. The last part carries out an analysis of theprotection scope of a composition closed claim based on the relevant infringement cases, andthis protection scope is determined through the examination and the verdicts of infringementcases.Chapter five is the suggestions of the protection scope of a composition closed claim inthe current patent system. Initially, this chapter carries out an analysis of the provisions as to aclosed claim in the current patent system. The following part is the suggestions as to how tobalance the interest of the patent owners and that of the public, which includes the suggestionsabout the revision of the provisions on the composition closed claim in the Guidelines as wellas the suggestions about how to improve the judicial interpretation.