On The Scope Of Protection Of Functional Claims

Functional claims are claims defined by functional technical features. Under these special claims, one or more technical features of a patent is defined by the roles, functions and the resulted effects of the structure and means on the invention and innovation. The scope of functional claims is literally larger than that of the claims by structure or means, which has posed the issue that how the functional claims should be constructed to reasonably ascertain its scope of protection. Especially with the rapid development of technical science such as computers and communications, functional claims have accordingly emerged in large quantity. Moreover, rules for ascertaining the scope of protection of functional claims adopted by the Guidelines for Patent Examination and Judicial Interpretation of the Supreme People's Court are entirely different, resulting in the inconsistency between the scope of protection ascertained by examination and authorization, and the scope ascertained by tort decision. This fails to reach the goal of definite and explicit scope of protection of patent rights, and the reasonable balance between the patent holder and the society. Therefore, it is highly necessary to conduct research on the scope of protection of functional claims.This paper is divided into five chapters:Chapter one introduces a case. A tort action case brings forth the issue discussed in this paper .Chapter two introduces the case focus and poses the question. when ascertaining the scope of protection of functional claims, the adoption of different methods in constructing the functional defining features of claims will influence the breadth of scope of protection of patent rights, and will further influence the decision of whether a tort has been conducted or not.Chapter three gives an account of the functional claims and its necessity, including the definition and classification of claims, the definition and necessity of functional claims, causes for the permission of functional claims and the prohibition of pure functional claims, and the application of functional claims.Chapter four deals with ascertaining the scope of functional claims. Three issues are addressed, first, ascertaining the scope of functional claims and its three stages; second, defining"two key issues"which shall be kept in mind; and third, discussing the scope of protection ascertained by examination and authorization, and the scope ascertained by tort decision with special reference to a case.Chapter five puts forward the deficiency and improvement about provisions of the scope of protection of functional claims in china's patent system. An analysis of the defects in current requirements - different rules for ascertaining the scope of protection of functional claims adopted by the Guidelines for Patent Examination and Judicial Interpretation of the Supreme People's Court and the inconsistency between the scope of protection ascertained by examination and authorization, and the scope ascertained by tort decision– lead to suggestions for correct application of functional claims, including revision of Guidelines for Patent Examination and further improvements of related provisions in judicial interpretation.