| The forth clause of 26tharticle in Patent Law of PRC states that the patent claims shall be based on the specification,that is,the technical solutions defined in the claims shall be obtained or summarized by those skilled in relative domain from the contents disclosed in the specification.It is the"supportability"requirement that the claims need to meet.This requirement is the regulator of the scope of patent protection,which is particularly important for the regulation of particular type claims,especially in the biological field.However,It is difficult to judge whether biological sequence claims are supported by instructions because of the complex nature of the biological field.So the support judgment of claims requirements in biological sequence has become the key and difficulty of patent administration and judicial review.The article is divided into five parts:The first part puts forward questions.It reveals the problems that exist in judging the supportability in such claims by citing a actual case.The second part is the technical foundation and system appeal of biological sequence claims.Legal issues often need to be analyzed from the perspective of things themselves.Therefore,the technical basis of biological sequence claims was described firstly,including the concept and characteristics of biological sequences;Secondly,the technical features in the claims were analyzed,especially the typical characteristics of the claims;Finally,the special rules for drafting patent specifications in the field of biotechnology were analyzed.The third part listed the influencing factors in the supportability of biological sequence claims.This section mainly discusseed the disclosure extent and submission time of experimental datas,judgment basis in the existing level of technological development,the range of limits defined by claims,and the predictability of biological field.The fourth part studied the broadness of support rules for biological sequence claims in the United States,Europe and Japan.This section firstly summarized the transition of supportability of such claims in those countries by case study.And then attitudes of the three National Review Bureaus to differently defined biological sequence claimswere laterally compared.The fifth part refered to the improvement of evaluation system for supportability requirements of biological sequence claims in China.According to the above analysis for the review ofprotectionscope in biological sequence claims,several suggestions were proposedin this paper.Under the principle of reviewing standard rigorously,the review criteria should be slightly lowered according to the level of different study direction in this field;The substantive examinationof biological sequence claims made by the Patent Reexamination Board shall be reduced to reach an agreement between standards of review and judicial protection.And the principle of inverse equivalence in judicial trialshall be introducd. |
