Research On The Scope Of Protection Of Functional Claims

Functional claims themselves have natural generality.Compared with the way of writing product claims or method claims,their literal protection scope is broader,which will restrict the freedom of the public,and will also limit the innovation space in the future.In order to make the scope of protection matched with its own technical contribution,the existing legal provisions have made many restrictions on functional claims in accordance with the principle of "public for protection".As a result,the functional claims in the actual use process are faced with the risk of being difficult to authorize,or are easily invalid after authorization,or even if authorized,it is difficult to get protection and many other drawbacks.After studying the functional claims,many scholars have written in their papers that they should be cautious in using or avoiding the use of functional claims when writing technical solutions.However,functional claims have their own irreplaceable advantages.In some cases,it is inevitable to use functional claims.Therefore,exclusion of the use of functional claims is of no benefit.The most important thing of a claim is to know the boundary of its rights,but the identification of functional claims,the definition of the scope of protection and how to obtain a large scope of protection through writing have become a difficult problem in practical application.Therefore,the study of the scope of protection of functional claims has very important practical significance.This paper is divided into four parts:The first part: Overview of functional claims.This section first describes the origin of functional claims and their development status in China;secondly,it analyses and studies the causes of functional claims and their application areas;finally,it determines several difficulties affecting the scope of protection of functional claims,which are the identification of functional features and the need to unify functional claims.Interpretation rules of the scope of protection and suggestions for writing functional claims.The second part: Recognition of functional features.Recognition of functional features will not affect the scope of protection of functional claims,but the premise of defining the scope of protection is to be able to identify functional features.This part first analyses the reasons why functional features are difficult to be identified;after studying the relevant legal provisions and judicial cases,it summarizes a set ofspecific identification steps,including the formal identification of functional features first,and then the exclusion of functional features.Finally,it analyses how to identify functional features in method claims.The third part: Definition of the scope of protection of functional claims.This part first analyses the reasons why it is difficult to define the scope of protection of functional rights accurately;secondly,it elaborates two kinds of interpretation rules of functional claims in existing laws;finally,it analyses whether it is necessary to unify the interpretation rules of functional claims.The fourth part: Proposals for writing functional claims.Although the writing of functional claims is not directly related to the scope of protection,the level of writing directly affects the size of the scope of protection and whether it can be protected.Therefore,this part first analyzes the impact of the writing of functional claims on the scope of protection,in which the impact of writing on patent review and infringement judgment is elaborated separately;secondly,under the framework of existing legal provisions,it explores the factors that can affect the protection of functional claims,and finds some corresponding writing methods and strategies;finally,it describes the functionality.The existing writing forms of claims are proposed,and some suggestions on the writing forms of functional claims are put forward.