On The Scope Of Protection Of Functional Features

The functional features came into being in the United States in the 1950 s.Later,China confirmed in the 2001 edition of the review guide that such writing methods could be used.However,functional features have a wide range of literal meaning,which has always raised concerns about the formation of monopoly.The inconsistency between post judicial interpretation and the scope of protection in the review guide has triggered continuous discussion.Under the dual system of functional features,the rule of "covering all the implementation methods that can realize the functions" in the administrative system conflicts with the interpretation of "specific implementation methods and their equivalent methods" in the judicial system.Focusing on the determination of the scope of protection of functional features,from the perspective of interpretation of individual claims,the rules established by the judicial and administrative systems do not produce huge results Big conflict.In the specific context and premise,the scope of protection of the two is still consistent.The apparent difference is that the concept of functional features under the dual system is not completely overlapped,and there are inevitable deviations in technical understanding between judicial personnel and administrative reviewers,and the rules under the dual system operate independently of each other."Covering all the embodiments capable of realizing the said functions" does not include the embodiments capable of realizing the same functions and having technological progress after the application date,so whether it will cause monopoly does not conform to the fundamental purpose of the patent.By analyzing the cases of judicial adjudication in recent years,this paper discusses the difficulties encountered in the process of adjudication.For those skilled in the art,the level of cognition in a case cannot be entirely dependent on the judgment of a judge.The patentee is obliged to provide evidence in the case where the relevant technical features belong to the proviso,otherwise,it will bear the consequences of the failure of providing evidence.The application of the proviso shall not be limited to the literal meaning,and the cognitive level of the ordinary technicians in the art shall be widely grasped to avoid that the relevant technical features are improperly identified as functional features.The strict recognition of functional features is precisely because the scope of protection will be limited by the specific implementation mode in the specification after being identified as functional features,which is far less than the patentee's imagination,and even the scope of protection is difficult to match with the degree of innovation of the invention.Compared with the traditional principle of equivalence,it is not improper to make further restrictions on functional identity.In the analysis of the indispensable technical features as the basis of comparison,the technical features should not be over disassembled;in the judgment of infringement,the determined functional technical features should be compared with the corresponding indispensable features of the defendant.In the process of examining whether the means adopted are basically the same,whether the realization function and effect are the same,we should pay attention to analyzing whether the corresponding technical features of the patent involved are the invention points,and for the non invention points,we should relax the same judgment standard to avoid only replacing the conventional technical means so as to avoid the protection scope of the patent.In practice,in order to better respond to the problems brought about by the scope of functional feature protection,the parties concerned can combine their own situations to form a clear level and complete system of protection from paying attention to the writing quality of patent application documents and the patent layout.Or flexible use of donation rules,the principle of comprehensive coverage,the principle of equivalence,the principle of estoppel,etc.,from all angles,to make a non infringement defense.