Research On The Determination Mechanism Of Patent Protection Scope

The “determination” of the scope of patent protection is a link independent of the“establishment” of patent rights.The determination of the scope of patent protection is embodied in the patent authorization confirmation procedure and the infringement judgment procedure.Compared with the static fixed patent object,the patent right The scope of protection is relatively dynamic and uncertain.At the beginning of the establishment of patent rights,the scope of patent protection is not clear.There are not only considerations of the economics of patent examination resources,but also the difficulty of determining the scope of patent protection,which focuses on different technical features due to different cases,and even Considering the problem of information difference in the interpretation of patent documents,in short,the modern patent system distinguishes between the procedures for determining the scope of patent protection and the establishment of patent rights,and assumes the dual role of safeguarding the interests of patentees and the interests of the public.For the determination of the scope of patent protection,there are two main links: the first is the interpretation of claims,combined with legal rules to preliminarily determine the scope of protection of the patent;the second is the application of the principle of equivalent infringement,which is essentially Consider the scope of rights.The application of the principle of patent equivalent infringement has its inevitability.Too rigidly define the scope of patent protection based on the patent claims,and determine patent infringement according to the theory of literal infringement,which will inevitably lead to the inadequacy of patent protection.In real life Very few infringers directly commit infringement in a way that is completely equivalent to every technical feature of the patent claims.The first and second chapters of this article separate the establishment,"determination" and "establishment" procedures of patent rights,and conduct research on what is the scope of patent protection and the links of theoretically determining procedures.The scope of patent protection is determined by the patent documents,especially the claims.However,it is almost impossible to understand the subject matter of the patent based on the claims alone.It is necessary to read the specification at the same time.It is still very difficult to make the scope of protection of patent rights unique and certain.It is necessary to explain the patent documents.The necessity of this interpretation comes from the accuracy of words as an expression of intangible patent objects.At the same time,there is no general technical personnel in the field,and different people have different interpretations of patent documents.Therefore,a relatively stable interpretation rule is needed to achieve the full interpretation of patent documents.Possible clarity.It is worth mentioning that the dual system is implemented in the field of patent protection,and multiple procedures overlap.It is necessary to pay attention to the impact of China’s dual system on the scope of patent protection.Finally,the two parallel links of "determining the scope of protection of patent rights" and judging "patent infringement",can only specifically delimit the scope of protection of patent rights in the specific judgments of whether or not infringement.Chapters 3 and 4 of this article mainly focus on the interpretation of claims and the applicable rules of the principle of equivalent infringement,exploring the two most important links in the practice of determining the scope of patent protection.The modern equivalent infringement theory comes from the United States.Since its establishment,there has been a trend of continuous strict application to alleviate the conflict between it and the principle of publicity.Specific applicable rules,including the "all elements" rule,the three-element test method,the time point of equivalence judgment,and the correspondence of equivalence features,have played a role in restricting equivalence.To determine whether the corresponding two technical features are equal,the key is in the opinion of ordinary technicians,whether the replacement "uses basically the same means to achieve basically the same function and achieve basically the same effect",a relatively stylized equivalent application rule Indeed,to a large extent,it alleviates the adverse effects that equivalence may bring to the principle of patent disclosure.However,in order to further regulate the principle of equivalent infringement,new theories and rules are still needed to regulate it.Chapter 5 of this article discusses the determination of the scope of patent protection from the perspective of the balance of interests.It mainly focuses on the institutional arrangements for the deterministic requirements and uncertainties of the scope of patent protection under the Patent Law,and discusses the underlying principles and balancing methods.On the one hand,it is the arrangement that claims interpretation must shift from the publicity function to the post-adjustment function.On the other hand,the arrangement of the principle of equivalence is an inevitable means to maintain the patent system.Determining the scope of protection of patent rights is actually a definition of the public domain of intellectual property rights,which allows the public to have a free judgment space.It is also because of the cherishment of the public interest of the society.The laws of various countries will also strictly apply the equivalent infringement.limits.