Research On The Functional Claims Of Patent Protection Extent

Since the extent of the protection conferred by a patent shall be determined by the claims,the elements of the underlying technology solutions of the claims shall be described clearly and completely.In general,the claims shall apply structural or methodological languages(languages that describe the structure of the device,the constituent of the material or the procedure of acts of the technology solution in the patent)to describe the elements.However,because of the expressing limitation of our language,some kinds of elements are not able,or not appropriate,to be described in structural and methodological language,and there goes means-plus-function claims,also called functional definition,which are defined,or partly defined by functional languages(languages that describe the specified function of the corresponding structure,material or acts in the whole patent).But means-plus-function claims always trigger academic debates,for their forms are so unlike the traditional ones' and the extent of protection conferred by them are sometime uncertain.Nowadays,the academic study of means-plus-function claims is weak in C hina.This paper attempts to make full-scale scientific research on means-plus-function claims,on the basis of corresponding theoretical results and judicial practice at home and abroad.This paper is divided in four parts.The first part introduces the reason of the appearance and uprising of means-plus-function claims,and make a theoretical thorough analysis on the definition,category and nature of means-plus-function claims.It points out that in spite of the generalized-limited classification of means-plus-function claims,they are still reasonable as well as necessary in nature.In addition,some opposing views are discussed.In the second part,this paper mainly introduces relevant legislation and judicial practice of the United States,Europe,Japan,etc.,special attention is paid to the related regulations and practical operation of the identification rules,application conditions,and construction rules of means-plus-function claims.This paper tries to provide some useful inspirations for the design and practice of the relevant system of means-plus-function claims in C hina by drawing on overseas experience.Part Three focuses on the construction rules of means-plus-function claims.Currently,construction rules which are widely applied by countries can be divided into two categories: the broad construction rule and the specific construction rule.This paper points out that these two kinds of construction rules shall apply to different kinds of objects(i.e.different kinds of means-plus-function claims)which shall not be mixed up.In addition,it also discusses some other controversial issues,and suggests that the specific construction rule shall be corrected appropriately.The last part of this paper firstly generalizes the current legislation system of means-plus-function claims in C hina,then points out the inconsistency as well as their own defects of the related department regulations and judicial interpretations of means-plus-function claims.Finally,advices on how to perfect the relevant legislation system of means-plus-function claims in China are proposed,based on the research results of the previous three parts.