The Judicial Protection Of Functional Characteristics

Neither the “Patent Law”nor the “Implementation Rules for the Patent Law” has made any provision about functional characteristics.Although there are provisions in the judicial interpretation,there is no unity in its understanding and application.Functional characteristic is only prescribed in the article 4 of “The Interpretation of the Supreme People's Court on the Application of Law in the Trial of Cases of Infringement of Patent Disputes”(called “ The Application” in this article);and the article 8 of “The Interpretation of the Supreme People's Court on the Application of Law in the Trial of Cases of Infringement of Patent Disputes(II)”(called “The Application(II)” in this article).In most cases,there are disputes on the confirmation and infringement comparison of functional characteristices,due to the incompleteness of functional characteristics.The judicial interpretation is not consistent with the“Guidelines For Examination” on interpretation of functional characteristics,which has been discussed many times,but there is no unified conclusion.This article takes “Ning Tai V Qian Feng” as an example,the case of which is rated as one of the top ten intellectual property cases of Jiangsu Province in 2016,analysing the disputes of the parties and the court's judgment in the case.This article thoroughly analyzes the rationality of the provisions themselves and the problems of the provisions applied,and draws lessons from the relevant regulations of foreign countries to make up and perfect our judicial protection.The body of this article is composed of five parts:The first part is introducing the case of “Ning Tai V Qian Feng”,summarizing the claims of the first-instance court,second-instance court and the parties.It is precisely because of the different opinions naturally leads to the arguments of this article-The Judicial Protection of Functional Characteristics.The second part is giving a detailed analysis of China's judicial protection of functional characteristics by the combination of theory and practice.The theoretical basis is mainlythat firstly,the article 4 of “ The Application”,secondly,the article 8 of “The Application(II)”.The article discusses the intrinsic meaning and relationship between the two provisions,and summarizes how our functional claim patent infringement cases should be applied according to the existing regulations,and raise doubts about the scope of protection for only one equivalent determination.In the practical part,we sort out and analyze the court judgment of “Ning Tai V Qian Feng”.By comparing the court's judgments and judicial interpretations,we combine practice and theory to explore the rationality of our rules and summarize the problems existing in the comparison of functional characteristics in identification and infringement.The third part is analyzing the institutional system of China's functional characteristics.The provisions in China's judicial and review procedures are inconsistent.In the judicial process,the interpretation rule of “the specific implementation method and its equivalent implementation method” is adopted;and in the review procedure,“all implementation methods” is adopted.After analysng the reasons for its inconsistency,it is considered that the inconsistency is reasonable.Although there are obvious differences between them,if they are combined with other clauses,their internal reality is consistent under the whole system of functional characteristics.Moreover,the provisions in the judicial process can make up for the inherent defects of the review procedure.As long as patent examiners strictly examine the supporting problems in the review procedure,the two procedures can be well connected.The fourth part is the extraterritorial provisions.The United States is the first country to determine its functional characteristics in its patent law.At the same time,the rapid development of the US economy and its right to speak in the world make its patent legislation affect many countries.Because of the feature and influence of its own organization,the provisions of the functional characteristics of the European Union are also deserve our analysis.This part analyzes the relevant provisions of the functional characteristics of the United States and the European Union,looking forward to be used for reference in improving the functional characteristics of China.The fifth part is about the improvement of the functional characteristics in China.Based on the experience of extraterritorial legislation,we improve the practice of“identifying only one time equivalent and determining the scope of protection” of the article8 of “ The Application(II)”,and put forward the idea the distinction between inventions and non inventions of the infringement.I hope to make certain contribution to the infringement judgment of similar cases.