According to the editor, it has been 16 years since China implemented the patent system on April 1, 1985. Over the past ten years, more than 10000 patent cases of first instance have been adjudicated by courts throughout the country, of which more than 70% are patent infringement cases. The purpose of establishing patent system is to protect the right of invention and creation, encourage invention and creation, promote the popularization and application of invention and creation, promote scientific and technological progress and innovation, and meet the needs of socialist modernization. Among them, the core is to protect the patent right of invention and creation according to law. The function of the people's court determines that the people's court plays an extremely important role in the protection of patent rights. The key to protect patent right according to law and punish infringement of patent right is to judge patent infringement. This work involves not only legal issues, but also technical issues, as well as various fields and aspects of science and technology. It is one of the judicial problems recognized by all countries implementing patent system, and also one of the focuses of academic debate in patent field.
Due to the comparative principle of legal provisions in patent infringement and the lack of judicial practice experience, it is not only difficult for judges to hear patent infringement cases, but also difficult for patent lawyers and parties. In order to protect the patent right of invention and creation more effectively and unify the judicial standards, the Beijing Higher People's court, in accordance with the provisions of the patent law, the detailed rules for the implementation of the patent law and the relevant judicial interpretation of the Supreme People's court, on the basis of summing up many years of patent trial experience and widely soliciting the opinions of experts, drafted the opinions on Several Issues concerning the determination of patent infringement (Trial Implementation) and has been approved by the judicial committee It will be implemented in the patent trial work of the Beijing municipal courts.
As a document of Beijing district court, although it is not a judicial interpretation and should not be directly quoted in legal documents, it is a summary of practical experience in the trial of patent infringement cases, which provides a reference standard for judges to determine patent infringement and can be helpful to law enforcement Officials' understanding of relevant laws and regulations.
Of course, some viewpoints in the opinions have been debated in the patent industry for many years. The purpose of publishing this document is to convey relevant information to the majority of patent readers. At the same time, we hope that if there are different opinions on the opinion, we can timely feed back to the Beijing court, so that the opinion can be continuously supplemented and improved in practice.
1、 Determination of the scope of patent protection for invention and utility model
（1） Determine the interpretation object of protection scope
1. The scope of protection of a patent right for invention or utility model shall be subject to the contents of the claims. The description and the drawings may be used to interpret the claims. However, the contents of the description and the drawings cannot introduce the claims.
2. Patent independent claims reflect the technical solution of the patent for invention or utility model as a whole, record the necessary technical features to solve the technical problems, and have the largest scope of protection compared with the dependent claims. Therefore, when determining the scope of patent protection, the independent patent claim with the largest scope of protection should be interpreted.
3. Sometimes there are more than two independent claims in a patent. According to the patent infringement claim put forward by the obligee, only the scope of protection determined by the independent claim shall be explained.
4. If the obligee sues the defendant for infringement according to the patent dependent claim, the court may also interpret and define the scope of protection of the dependent claim.
（2） Principles of interpretation for determining the scope of protection
5. The principle of patent validity. The plaintiff's request for protection must be an effective patent right protected by the patent law. It is not an invention creation that has passed the term of protection, has been revoked by the China Patent Office, has been declared invalid by the Patent Reexamination Board, or has been abandoned by the patentee.
6. The determination of the scope of protection of patent rights should adhere to the principle of taking the content of the claims as the criterion. The principle of eclectic interpretation shall be adopted when the claims are interpreted in terms of the description and the drawings. On the one hand, the principle of "peripheral limitation" should be avoided, that is, the scope of protection of the patent is completely consistent with the scope of protection recorded in the text of the claim, and the description and drawings can only be used to clarify some ambiguities in the claim; on the other hand, the principle of "central limitation" should be avoided, that is, the claim only determines a general core of the invention, and the scope of protection can be extended to technical experts After the description and the attached drawings, it is considered to be within the scope of protection claimed by the patentee. The eclectic interpretation should be in the middle of the above two extreme interpretation principles, and should combine the reasonable and legitimate protection of the patentee with the legal stability and reasonable interests of the public.
7. The principle of treating the technical content recorded in the patent claim as a complete technical solution. That is to say, the technical content expressed by all the technical features recorded in the independent patent claims should be regarded as a whole. The technical features recorded in the preamble and the technical features recorded in the feature part have the same effect on defining the scope of patent protection.
8. When interpreting a patent claim, the technical content recorded in the patent claim shall prevail, rather than the wording or wording of the claim. The technical content of the invention or utility model shall be determined on the basis of comprehensive consideration of the technical field of the invention or utility model, the well-known technology before the date of application, the technical solution, the role and effect by referring to and studying the description and the drawings.
9. The interpretation of patent claims should follow the principle of fairness. We should not only fully consider the patentee's contribution to the existing technology, reasonably determine the scope of patent protection, protect the patentee's rights and interests, but also not infringe on the public interest. We should not "interpret" the well-known technology as the scope of patent protection, nor should we "interpret" the patented technology as the well-known technology.
（3） How to define the scope of protection
10. When determining the scope of patent protection, the text of the patent claim finally announced by the state authorized authority or the text of the patent claim determined by the legally effective decision of reexamination, revocation or invalidation shall prevail.
11. The Patent Description and drawings can be used to fairly expand or narrow the scope of protection of the technical solution literally defined by the patent claim, that is, to interpret the features equivalent to the necessary technical features into the scope of protection of the patent right, or to define some necessary technical features with the Patent Description and drawings.
12. In case of any inconsistency or contradiction between the independent claim of a patent and the description of the patent, the patent is not in conformity with the provisions of paragraph 4, Article 26 of the patent law, and the parties concerned shall solve the problem through the patent invalidation procedure. If the party concerned is unwilling to solve the problem through the invalidation procedure, the court shall, based on the principle of patent validity and priority of patent claims, take the scope of protection limited by patent claims as the criterion, and shall not "correct" the technical content recorded in patent claims based on the contents disclosed in the description or drawings.
13. Where there is ambiguity in the technical features recorded in the independent patent claim, it may be clarified in combination with the dependent claim or the description and the drawings.
14. If the dependent claim contains the technical feature which should be recorded in the independent claim and is essential for solving the technical problem of the invention (without the technical feature, the technical solution recorded in the independent claim is no longer complete), the patent is not in conformity with the provision of paragraph 2, Article 21 of the implementation rules of the patent law. The parties concerned may solve the problem through the patent invalidation procedure. If the parties are unwilling to solve the problem through the invalidation procedure, the court may, according to the principle of the parties' request, limit the scope of patent protection with corresponding subordinate claims when determining the scope of patent protection.
15. The technical solutions only recorded in the description and drawings of the patent but not reflected in the patent claims shall not be included in the scope of patent protection. That is to say, the scope of patent protection cannot be determined on the basis of the description and drawings.
(1) If a technical solution is fully disclosed in the patent specification, has specific description and embodiment, but is not recorded in the claims, it shall be deemed that the technical solution is not within the scope of patent protection, and it is not allowed to be included in the scope of patent protection when interpreting the patent claims.
(2) If the technical content recorded in the patent claim is different from the description or embodiment in the patent specification, the description in the patent claim has priority, and the content recorded in the patent claim can not be "corrected" by the description and drawings.
(3) If the scope of the technical content disclosed in the description and drawings of the patent is wide, but the scope of protection claimed in the patent claims is narrow, in principle, the scope of protection of the patent right can only be determined by the technical content in the claims.
16. If the independent claim of a patent and its subordinate claims lack the necessary technical features for solving the technical problems of the invention or utility model, and only the necessary technical features are disclosed in the patent description or drawings, the patent is not in conformity with the provisions of paragraph 2, Article 21 of the rules for the implementation of the patent law, and the parties concerned shall solve the problem through the patent invalidation procedure.
17. When the reference mark is quoted in the patent claim, the technical features in the patent claim should not be limited by the specific structure reflected in the drawings. The scope of patent protection should not be completely limited by the specific embodiments disclosed in the description.
18. Abstract can not be used to determine the scope of patent protection, nor can it be used to interpret patent claims.
19. When explaining the scope of patent protection, patent application files and patent reexamination, revocation and invalidation files can be used to prohibit the patentee from reneging.
20. Patent application files and patent reexamination, revocation and invalidation files can be used to correct printing errors in patent documents. When the printing error in the patent document affects the determination of the scope of patent protection, the original document in the patent file shall prevail.
21. In case of obvious clerical error in the patent claim or specification, it shall be interpreted correctly according to the actual situation.