| The claims of product patents are generally characterized by the structure,shape,parameters,etc.For products patents application in chemistry,biology,etc.,due to the unclear structure of the products or the inability to know according to the prior art,there are Product-By-Process Claim,a special way of writing.China’s provisions on this claim are not perfect.In the case of new creative judgment and patent infringement disputes,State Intellectual Property Office supports interpretation rules of the "Narrow-Interpretation" while interpretation rules of "Broad-Interpretation." is adopted by courts.As a result,the scope of protection of patents has changed at two stages and the patentee has difficulty in collecting evidence about the method applied by the infringer in a lawsuit.Therefore,this paper proposes a specific solution to the interpretation rules of the Product-By-Process Claim,and regulates the requirements of this type of claims.Analyzing the current situation of applying two kinds of interpretation rules at different stages in China,with a view to proposing a better advice of the interpretation rules of Product-By-Process Claim and to balance the interests of patentees and the public.This paper is divided into three parts: abstract,text and conclusion.The text is divided into the following five chapters:Chapter Ⅰ mainly illustrates the research background,significance and research methods of this thesis.In the review and trial stages,the interpretation of Product-By-Process Claim makes it difficult to balance the interests of the patentee andthe public.Through the analysis of this chapter,based on the research background,it is determined to use literature research method,comparative analysis method and case analysis method to further study the subject.Chapter Ⅱ mainly introduces the products,methods and methods extended by the product,the meaning of Product-By-Process Claim,the subject object and rules of Product-By-Process Claim interpretation.The method of Product-By-Process Claim interpretation includes broad-interpretation.narrow-interpretation,and the two interpretation methods are respectively applicable to the review and trial stages in China.Through the analysis of this chapter,we have a framework understanding of Product-By-Process Claim,and clarify the basic concepts for the analysis of the following chapters.Chapter Ⅲ first introduces the status quo of the interpretation of Product-By-Process Claim in review stage and trial stage of China,and then analyzes the relevant cases,pointing out that the administrative department and the judicial department use different interpretation rules for the interests of the patentee and the public.According to different influences,based on this,we further study the defects of the method for interpreting Product-By-Process Claim in China.Through the analysis of this chapter,the inconsistency and defects of the interpretation rules for Product-By-Process Claim in different stages of China are clarified,which will guide to propose further solutions in following chapters.Chapter Ⅳ mainly introduces the methods of interpreting Product-By-Process Claim in different regions of the region.By analyzing the interpretation rules adopted at different stages of the United States,the European Union and the United Kingdom,the author further explores the enlightenment of the Product-By-Process Claim interpretation rules in China.Through the analysis of the contents of this chapter,it is clear that the interpretation of the method-restricted product claims in China at present is consistent with the international mainstream practice,but there is still a need for improvement,and the guidance proposes further solutions.Chapter Ⅴ,combined with the above analysis,proposes suggestions for the Product-By-Process Claim interpretation rules in the review and trial stages of China.On the premise of using two interpretation rules,on the one hand,the review department should guide the applicant to use the structure and/or constitute modifying the product as much as possible.Based on the analysis of this chapter,based on China’s national conditions,and drawing on the relevant experience of foreign countries and regions,this paper puts forward some suggestions that on the other hand,the proof of the method characteristics should apply the principle of inversion of the burden of proof. |
