Research On The Identification Of Functional Features In Patent Infringement And The Determination Of Protection Scope

The word "innovation" appeared more than 50 times in the report of the 19 th CPC national congress,and general secretary Xi Jinping even regarded innovation as the primary driving force for development.Whether in theory,practice,system or culture,innovation has become the main theme of development.With the deepening of the innovation-driven strategy,China has become a major country in patent application and authorization,and the number of patent litigation cases accepted by the people's courts has reached new highs every year.Faced with the rapid development of technological innovation and the fierce increase of patent infringement cases,China's patent system is in urgent need of in-depth theoretical research and practical discussion due to its late start and weak foundation,so as to consolidate our theoretical foundation and improve our system construction.As one of the foreign products in China's patent system,functional feature is a relatively new concept in patent legislation and practice.China's patent law,including the implementation rules of the patent law,does not stipulate the functional features.Before the new judicial interpretation clearly defined the functional features in 2016,functional features have been widely used in practice.In general,the claims of the authors of the book with the specific characteristics of structure and composition to describe and express a product invention,or concrete implementation method and implementation steps can be used to describe a method of invention,but functional claim is to use the structure of the product or method of steps in the role of the invention and the function to describe and qualified.Such a claim will bring a lot of uncertainty to the later judgment of possible infringement,and whether it is identified as a functional feature will also have a decisive impact on the result of infringement judgment.The "dispute between nokia and Shanghai huaqin communication technology co.,ltd.over infringement of invention patent right",which lasted for five years from 2010 to 2015,is undoubtedly a typical case of the identification of functional features in patent infringement cases.This article to the actual case as the breakthrough point,in the case of disputes,on the basis of in-depth legal analysis,combined with 2016 of the latest judicial interpretation,and a series of similar cases,think in the patent infringement cases,the cognizance of the functional characteristics should be ruled out two aspects,positive recognition and opposite the protection range of the functional characteristics of specific interpretation rules should be adopted,namely the implementation of the concrete implementation method and the equivalent way to determine.And functional characteristics of patent infringement in China and its scope of protection in the process of the universality of the standards,the objectivity of interpretation rules of unity,the body question and discussion,finally in the United States,Europe,Japan and other countries and regions in the definition of functional characteristics,interpretation,judgment rules and experience respectively on the basis of investigation,Some Suggestions are put forward to improve the system of functional characteristics in patent infringement in China,such as distinguishing the functional descriptions of computer programs,unifying the administrative and judicial interpretations of functional characteristics,and clarifying the identification criteria of "ordinary technicians in this field".