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 the patent right for invention or utility model shall be subject to the content of the claim, and the description and the attached drawings can be used to explain the claim. However, the contents of the description and the attached drawings cannot be introduced into the claim.
2. The patent independent claim reflects the technical solution of the invention or utility model patent in a whole, and records the necessary technical features to solve the technical problems, and the scope of protection is the largest compared with the subordinate claim. Therefore, when determining the scope of patent protection, the independent claims of patent with the largest scope of protection should be interpreted.
3. There are sometimes more than two independent claims in a patent. The scope of protection determined by the independent claims shall be explained only according to the claims for patent infringement filed by the obligee.
4. If the obligee sued the defendant for infringement according to the patent subordinate claim, the court may also explain 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 must claim protection as an effective patent right protected by the patent law. Instead of invention creation which has passed the protection period, was revoked by the Patent Office of China, declared invalid by the patent reexamination commission or abandoned by the patentee.
6. The principle of the content of the claim shall be followed in determining the scope of the protection of the patent. The principle of compromise interpretation shall be adopted for interpretation of claims in the description and drawings. The principle of "peripheral limitation" should be avoided, that is, the scope of protection of the patent is identical with the protection scope recorded in the written claims. The description and drawings can only be used to clarify some ambiguity in the claim; meanwhile, the principle of "central limitation" should be avoided, that is, the claim only determines a total invention core, and the scope of protection can be extended to the technical experts' reading After the specification and the attached drawings, it is considered to be the scope of protection required by the patentee. Compromise interpretation should be in the middle of the two extreme interpretation principles, and the reasonable and proper protection of the patentee should be combined with the legal stability and reasonable interests of the public.
7. The technical content recorded in the patent claim is regarded as a complete principle of technical scheme. That is, the technical content expressed by all technical features recorded in the patent independent claims shall be taken as a whole. The technical features recorded in the preceding part and the technical features recorded in the feature part shall have the same effect on limiting the scope of patent protection.
8. In interpreting the patent claims, the technical content recorded in the patent claims shall prevail, rather than the principle of the words or wording of the claims. The technical content of the invention or utility model shall be determined by reference and research instructions and drawings, on the basis of comprehensive consideration of the technical field of invention or utility model, the well-known technology, technical solution, function and effect before the application date.
9. The interpretation of patent claims should follow the principle of fairness. It is necessary to fully consider the contribution of the patentee to the existing technology, reasonably determine the scope of patent protection, protect the rights and interests of the patentee, and shall not infringe on the public interest. The "interpretation" of the public know technology should not be the scope of protection of the patent right, nor should it be interpreted as the public know technology.
（3） Interpretation method for determining the scope of protection
10. When determining the scope of patent protection, the text of the patent claims finally announced by the state authorized authority or the text of the patent claims determined by the legally effective review decision, revocation decision or invalidation decision shall prevail.
11. The patent specification and the attached drawings can be used to make a fair expansion or reduction of the scope of protection of the technical scheme defined in the patent claims, that is, to interpret the features equivalent to the necessary technical features to the scope of patent protection, or to define some necessary technical features with the patent specification and the attached drawings.
12. If there is any inconsistency or contradiction between the patent independent claims and the patent specification, the patent does not conform to the provisions of article 26.4 of the patent law, and the parties shall solve the problem through the patent invalidation procedure. If the parties are unwilling to solve the problem through invalid procedures, the court shall take the principle of validity of patent right and priority of patent claim, and the scope of protection limited by patent claim shall prevail, and shall not "correct" the technical content recorded in patent claims according to the contents disclosed in the specification or attached drawings.
13. In case of ambiguity in the technical characteristics recorded in the patent independent claims, it may be clarified in combination with the subordinate claims or the description and the attached drawings.
14. If the dependent claim contains the technical features which should have been recorded in the independent claim and necessary to solve the technical problems of invention (the technical features are missing and the technical scheme recorded in the independent claims is incomplete), the patent does not conform to the provisions of Article 21, paragraph 2, of the detailed implementation of the patent law. The parties may solve the patent invalidity procedure. If the parties are unwilling to solve the problem through invalid 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 scheme recorded in the patent specification and the attached drawings, but not reflected in the patent claims, cannot be included in the scope of patent protection. That is, the scope of protection of patent rights cannot be determined based on the description and the attached drawings.
(1) If a technical scheme is fully disclosed in the patent specification, and has specific description and embodiment, but it is not recorded in its claim, it shall be recognized that the technical scheme is not within the scope of patent protection and it is not allowed to be included in the scope of patent protection when interpreting patent claims.
(2) If the technical content recorded in the patent claim is different from the description or embodiment in the patent specification, the record in the patent claim shall take precedence, and the content recorded in the description and the attached drawings shall not be used to "correct" the content recorded in the patent claim.
(3) If the scope of technical content disclosed in the patent specification and the attached drawings is wide, and the scope of the claim for protection is narrow, in principle, the scope of protection of the patent right can only be determined by the technical content in the claim.
16. If the independent patent claim and its subordinate claims lack the necessary technical features to solve the technical problems of invention or utility model, and only the necessary technical features are disclosed in the patent specification or drawings, the patent does not conform to the provisions of Article 21, paragraph 2, of the rules for the implementation of the patent law, and the parties shall solve the problem through the patent invalidation procedure.
17. When the reference to the attached drawing mark is made in the patent claim, the technical characteristics in the patent claim shall not be limited by the specific structure reflected in the appended drawings. The scope of patent protection shall not be completely limited by the specific embodiments disclosed in the specification.
18. It can not be used to determine the scope of protection of patent rights, nor to explain patent claims.
19. When interpreting the scope of patent protection, patent application files and patent reexamination, cancellation and invalid archives may be used to prohibit the patentee from repenting.
20. Patent application files, patent reexamination, cancellation and invalid archives can be used to correct the 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. If there is any obvious error in the patent claim or specification, it shall be correctly explained according to the actual situation.