The Research On Problems And Countermeasures Of Functional Claims

It is generally agreed that a functional claim means that an element in a claim may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof. With the rapid development of science and technology, there's a lot of elements in a claim can not be expressed as the recital of structure, material or acts in support thereof, especially computers,communications, electronics and other industries, using a specified function to describe the claim is more convenient. In order to protect such inventions,the use of functional claim in practice is allowed. But it's not free to use, the use of functional claim must satisfies several conditions, we can only use it when an element can't be expressed as the recital of structure, material or acts, and the specified function in the claim can be definitely verified by reading the instruction or the usual means in the technical field.In theory, we can get a wider protection scope in using functional expression, the applicants may use that expression because of their no idea of the regulations. But in fact, because of the protection scope of the functional claim is not clear, most of the applicants may suffer a loss in their rights, and it's lead to the conflict between theory and fact. The major reason is our patent law and related judicial interpretation of the provisions of the functional claim is not perfect, there have no unified and coordinated system. Therefore, correctly grasping the scope of protection of the functional claim is very important for the applicant, the inspector and the judge. It requires a clear definition of functional claim. Due to the fuzziness of the functional claim itself, and the requirement of the function of the limited rights in our country is not perfect, so that the understanding of the functional claim appears confusion. Therefore, it is necessary to study on the system of functional claim, find a suitable method to solve the problem of the definition and the explanation of the functional claim.This article starts from the problems of the practice of functional claim in our country, finds out the causes of the problems and try to analyzes them, and finds out the most important problems. By analyzing the functional claim provisions and its patent system of foreign, then compared with our provisions. According to the conditions of our country, this article offers suggestions to solve the problems at present, putting the definition of the functional claim into the law, filtering the functional claim reasonably in patent examination, considering the technical content l in judgment of Patent Infringement, grasping the scope of the claim comprehensively when writing the claim, trying to reduce the problems in practice,and achieve the unity of the system.