What is the scope of protection of a patent and what is the scope of protection of a patent?

1. What are the contents of the patent right?

1. The rights of the patentee.

1) Exclusive implementation rights.

2) Licensing rights.

3) Right to Transfer.

4) Right of Labeling.

It refers to the right of the patentee to mark the patent mark and patent number on the patented product or the packaging of the product.

2. Obligations of the patentee.

The obligation of the patentee is mainly to pay the annual patent fee. Article 43 of the Patent Law stipulates that the patentee shall pay the annual fee from the year in which the patent right is granted. Failure to pay the annual fee as required may result in the termination of the patent right.

2. What is the scope of protection of a patent right?

The scope of protection of a patent for invention or utility model shall be subject to the content of its claims, and the description and drawings may be used to explain its claims. This means that the scope of protection of a patent right shall be subject to the scope determined by the necessary technical features clearly recorded in the claims, and also include the scope determined by the features equivalent to the necessary technical features. "Equivalent feature" refers to a feature that achieves basically the same function and achieves essentially the same effect by basically the same means compared with the technical feature described in the claim, and can be associated with a person skilled in the art without creative labor at the time of the infringement.

The scope of protection of the design patent right shall be subject to the design patent product indicated in ** or **. The scope of protection of a design patent depends on two aspects: first, the design is expressed in ** or **; The second is the scope of the product to be used in the design specified at the time of patent grant.

To determine whether a design is identical or similar, it should be based on similar products.

The scope of patent preservation protection in China: According to Article 59 of the Patent Law, the provisions are as follows:

1. The scope of protection of a patent for invention or utility model shall be subject to the content of its claims, and the description and drawings may be used to interpret the claims. The claims shall state the technical features of the invention or utility model and clearly and concisely express the scope of the claimed protection. Therefore, when determining the scope of protection of a patent, the content of the claims shall prevail first.

2. The scope of protection of the design patent right shall be subject to the design of the product expressed in ** or **, and a brief description may be used to explain the design of the product expressed in ** or **. The criterion for determining whether infringement is is that the same or similar design is used on a product that is identical or similar to the patented product, it is considered to be infringing, and the same product means that it has the same purpose and the same function; Similar products refer to the same purpose, but the specific functions are different.

Legal basis] Article 59 of the Patent Law The scope of protection of a patent right for invention or utility model shall be subject to the content of its claims, and the description and drawings may be used to explain the content of the claims.

The scope of protection of a design patent right shall be subject to the design of the product represented in ** or **, and a brief description may be used to explain the design of the product indicated by ** or **.

According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Dispute Cases

If the accused technical solution contains technical features that are identical or equivalent to all the technical features recorded in the claims, the people's court shall determine that it falls within the scope of protection of the patent; If the technical features of the accused technical solution are not equal or equal to all the technical features recorded in the claims, or if more than one technical feature is not the same or the same, the people's court shall determine that it does not fall within the scope of protection of the patent.

Article 8 Where a design identical or similar to the authorized design is adopted on a product of the same or similar type as the patented design product, the people's court shall determine that the accused design falls within the scope of protection of the design patent right as provided for in paragraph 2 of Article 59 of the Patent Law.

1. The first paragraph of Article 56 of the Patent Law of the People's Republic of China stipulates that the scope of protection of a patent right for invention or utility model shall be subject to the content of its claims, and the description and drawings may be used to interpret the claims.

2. That is, the scope of patent protection in China is not determined in strict accordance with the words or wording in the claims. The scope of protection of an invention and creation patent right shall be subject to its claims, that is, the claims recorded in the claims submitted by the patent applicant and approved by the patent administrative department, and shall not be less than nor exceed the scope of the claims recorded in the claims. At the same time, the description and drawings have the function of interpreting the claims and can be used as the basis for interpreting the claims.

However, relative to the claims, the description and drawings only have a subordinate status, and cannot be used as the basic basis for the protection of the invention or utility model patent alone, and the basic basis can only be the claims.

3. How to determine the scope of protection of the patent right in a patent infringement lawsuit? Pursuant to Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Dispute Cases, the people's court shall examine all the technical features recorded in the claims asserted by the right holder in determining whether the alleged infringing technical solution falls within the scope of protection of the patent right. If the accused technical solution contains technical features that are identical or equivalent to all the technical features recorded in the claims, the people's court shall determine that it falls within the scope of protection of the patent;

4. Paragraph 2 of Article 56 of the Patent Law of the People's Republic of China stipulates that the scope of protection of the design patent right shall be subject to the product of the design patent expressed in ** or **.

5. The scope of protection of the design patent right shall be based on the ** or ** that reflects the design of the product. It should be noted that the scope of the design patent product protected by the design patent right shall be the scope of the same kind of product; If it is not a similar product, even if the design is the same, it cannot be considered as an infringement of the patent right.

6. Article 59 of the Patent Law stipulates that the scope of protection of a patent right for invention or utility model shall be subject to the content of its claims. The design patent right shall be subject to the design patent product in ** or **. The contents of the description and its drawings may be used to interpret its claims.

The scope of protection of the patent right is as follows:

1) Scope of protection of invention and utility model patent rights Article 59, paragraph 1 of the Patent Law of the People's Republic of China stipulates that the scope of protection of invention or utility model patent rights shall be subject to the content of its claims, and the description and drawings may be used to interpret the claims. Article 20 of the Detailed Rules for the Implementation of the Patent Law stipulates that the claims shall state the technical features of the invention or utility model and clearly and concisely express the scope of the claimed protection.

Therefore, when determining the scope of protection of a patent, the content of the claims shall prevail first, and here "prevail" means that the substantive content of the technical features and parameters recorded in the claims is necessary, and under this premise, the description and drawings can be used to interpret the claims. The interpretation here is to grasp the requirements of the claims as a whole, and not to refer to them when a particular technical parameter or feature of the claims is ambiguous. Of course, this interpretation does not mean that this interpretation can go beyond the understanding of the description and drawings by a person skilled in the art to which the patentee belongs, and extend to the scope desired by the patentee, and the aforesaid Supreme People's Court interprets this to mean that the scope determined by the necessary technical features clearly stated in the claims shall prevail, and also includes the scope determined by features equivalent to the necessary technical features.

The so-called equivalent feature refers to a feature that achieves basically the same function and achieves essentially the same effect by means that is basically the same as the described technical feature, and can be associated with a person skilled in the art without creative labor.

2) Scope of protection of design Article 59, paragraph 2 of the Patent Law of China stipulates that "the scope of protection of design patent right shall be subject to the design patent product expressed in ** or **". Paragraph 4 of Article 2 of China's Patent Law also stipulates:

Design refers to a new design that is aesthetically pleasing to the shape, pattern or combination thereof, as well as the combination of color and shape and pattern, and is suitable for industrial application. The scope of design protection is premised on the product suitable for industrial application, which is the shape, pattern, or combination of shape, pattern or combination of color, pattern or shape, and the combination of the shape, pattern or combination thereof and the combination of color of the product shall be aesthetically pleasing. Therefore, the criterion that the scope of protection of a design is based on the criterion that the design patent product is expressed in ** or ** is highly subjective.

The product itself does not fully reflect the product itself, there is a difference between the visual reflection of people and the objective performance of the product, especially the reduction effect of color ** can not be perfect, not to mention that the shape is a whole composed of points, lines and surfaces, different perspectives have different effects, and color is even more so. Therefore, it is impossible for people to be completely consistent in the recognition of designs that combine colors, shapes, and patterns, so we believe that the scope of protection of design patents should be extended to similar designs.

The scope of protection of a patent right refers to the scope of the legal effect of a patent right for inventions, utility models and designs.

2. The scope of protection of the design patent right shall be subject to the design patent product indicated in ** or **.