Beijing is advanced people court " patent tort decides the opinion of a certain
From;    Author:Stand originally

One, what practical and invention, new-style patent protects range is affirmatory

(one) the explanatory boy or girl friend that protects range certainly

1, the content that with its the right asks is the protective limits that invents practical perhaps and new-style patent accurate, manual and attached drawing can be used at explaining the right asks. But the content of manual and attached drawing cannot introduce right requirement.

2, the technical program that patent and absolute right asks from whole report invents practical perhaps and new-style patent, account solves the necessary technology feature of technical issue, its protect limits and appurtenant right to ask photograph comparing is the biggest. Accordingly, when affirmatory patent protects range, ought to become independent to protecting the patent with the biggest range the right asks to make an explanation.

3, the absolute right demand that there can be two aboves sometimes in a patent. The patent tort suit that ought to offer according to obligee requests, explain the protective limits that asks to decide about absolute right among them only.

4, obligee asks to sue the accused tort according to patent and appurtenant right, the protective limits that the court also can ask to appurtenant right gives the explanation is limitted.

(2) the explanatory principle that protects range certainly

5, patent is valid principle. Accuser requests to protect must be a valid patent that gets exclusive law protection. is not to already crossed protective period, by the cancel of Chinese Patent Office, creation that already perhaps was abandoned by patent person by annul of patent reexamine committee.

6, the content that the protective limits of affirmatory patent ought to hold to to ask with the right is accurate principle. With manual and right of attached drawing explanation the requirement ought to use eclectic explanation principle. Want to avoid to use principle of " of " circumjacent demarcate already, the protective range that protects limits and account of right requirement character patently namely agrees completely, manual and attached drawing can be used in clear right requirement only some of some ambiguous place; Want to avoid to use principle of " of " center demarcate again, namely right requirement decides a total invention core only, after protective limits can expand the technologist has seen manual and figure, think to belong to the limits that patent person asks to protect. Eclectic explanation ought to be in two afore-mentioned extremes to explain a principle among, ought to reach the reasonable and proper protection to patent person and the legal stability to the public its are reasonable interest union rises.

7, the principle that the technical content of the account in asking patent benefit regards a complete technology as plan look upon. The technical content that the place of all technology feature of the account in ought to asking patent and absolute right namely conveys regards a whole as look upon, the technical feature of advanced order part and account are in account the technical feature of diagnostic part, limits of patent to demarcate protection has same effect.
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