Analysis On Extended Protection Of Method Patent

Regarding how to define the scope of the extended protection of method patentcontains a lot of un-intermediated contradictions and interests, which results in thefact that the issue of the extended protection of method patent becomes largelyconcerned and discussed. For example, what kind of method patent should be given theextended protection, how to set the boundary in which the extended protection shouldbe used. Currently, there is no explicit stipulation of legislation among the numerousinternational conventions, even TRIPS. From which it gives a sign that there consistlarge disputes on the extended protection of the method patent. This article intendsto forward the idea about the improvement of the extended protection of the methodpatent by elaborating its concept, features and necessity, discussing the judicialpractice and the development about the extended protection of different countries andregions.This article includes three chapters. This first chapter gives a generalintroduction of the extended protection of method patent. Since the extendedprotection of method patent is essentially an “exception” of the principle ofdefining the protection of patent rights, this chapter discussed the particularityof the method patent on the manifestations and the distribution and burden of proof,as well as the necessity of the extended protection of the method patent which comesfrom the own feature of method patent. By combining with the history of legislationsystem on extended protection and a guide case of judicial practice in China, this chapter further analyzes the present situation and shortcomings of the extendedprotection of method patent in China.The second chapter analyzed specifically what kind of method patent and what kindof product should be given extended protection, as well as how to identify the productwhich “obtained directly” from the method patent, by combining with the legislativeand judicial practice in many countries and regions of the world.The third chapter combines the questions raised up by the first two chapters,forwards the idea that how to improve the extended protection of method patent in China.In this chapter, the viewpoint is that, China should, in one hand, clarify that theextended protection can be only used to “manufacture process” patent which leadsto main impact to “nature” of a product, on the other hand, expand the scope of product“obtained directly” from the method patent, from strictly enforcing the “originalproducts” to “follow-up products” which have the “nature” of the “originalproducts”.