Research On Patent Infringement Judgment Of "Product-by-Process"

The key to the proper settlement of patent infringement disputes lies in the impartiality and accuracy of infringement judgment.The scope of protection of patent right is the basis of judging patent infringement as it usually influences the final judgment result.Therefore,the key factor for the court to determine patent infringement is to clarify the protection scope of the patent involved.That means only when the technical features of the infringer's products fall into the scope of patent protection can it be judged as infringement.Otherwise,it will go to the other way.In legal practice,the scope of protection can be easily put into controversy because there is no certain way to define its generality and inconsistency,which not only confuses the patentee and the public,but also brings great difficulties to legal workers.The patent of "product-by-process" is different from the traditional product patent and method patent because of the special writing form of its claim.In nature,the "product-by-process" patent is a product patent that is distinct from the one which is characterized solely by its structure and/or constituent characteristics.The claim includes not only the structure and/or constitution characteristics of the product,but also,sometimes only,includes the characteristics of the preparation method of the product,which leads to a great controversy in the demarcation of the protection scope.At the stage of patent authorization,the Patent Office of China adopted the "product limitation method" to explain the protection scope of such patents and carry out absolute protection.It was believed that the characteristics of the preparation method recorded in the claim did not limit the protection scope while the different methods did not affect the result of infringement.However,in the judgment stage of patent infringement,Chinese courts often adopt the "total limitation method" to explain the scope of protection.If the preparation methods are totally different,the infringement should not be constituted.Therefore,how to accurately explain and define the protection scope of the patent infringement judgment of "product-by-process" has become an inevitable topic to solve such patent infringement judgment.This paper illustrates the basic theory on the patent of "product-by-process",combines the current judicial situation and problems of patent infringement judgement.In the full research,analyzing the main countries or regions outside "product-by-process" patent infringement determination,on the basis of theoretical and judicial experience.At the same time,the paper putsforward proper recommendations on our country's "product-by-process" judgement of the patent infringement.Firstly,the basic theory of the patent of "product-by-process" is described in detail.Secondly,combined with relevant domestic legislative provisions and typical cases,this paper analyzes and expounds the existing difficulties in the determination of patent infringement of "product-by-process" in China's practice.What's more,on the premise of clarifying relevant theories,rules and problems existing in the judgment of such patent infringement in China,this paper investigates the judicial practice of "product-by-process" patents in some major countries and regions,in hope of obtaining some enlightenment.Finally,based on the above research and analysis,as well as the enlightenment from major countries and regions,the paper also gives specific suggestions on the improvement of patent infringement judgment of "product-by-process" in China.