描述
开 本: 16开纸 张: 胶版纸包 装: 平装-胶订是否套装: 否国际标准书号ISBN: 9787513074179
本书着重对中美两国的专利权利要求解释相关法律进行比较研究，探讨两国法律的异同。专利的权利要求界定了专利权的范围，也是在专利侵权纠纷中争议的核心。解释权利要求以确定专利的范围是专利侵权判定中关键的一步。本书对于两国法律进行了功能性的比较。虽然美国专利法和中国专利法的概念框架大相径庭，权利解释规则的表述和术语差异较大，但是有些规则的内容实质上是一致的。中美两国也有一些在表述上非常相似的规则，但是这些规则在司法适用却有所不同，从而会给出不同的专利保护范围。在比较研究的基础上，以平衡激励创新和维护公共利益为原则，提出了对专利权利要求立法和司法的建议。
Contents
Preface i
Chapter I?U.S. Claim Interpretation: Procedural Law
A. U.S. Court System in General: Lawyers, Judges, Technical Experts
1. Claim Interpretation by Judges
2. Lawyers
3. Technical Experts
B. Jurisdiction
C. Evidence: Intrinsic Evidence vs. Extrinsic Evidence
1. Conflict Precedent Before Phillips
2. Phillips en banc Decision
3. The Hierarchy of the Evidence
4. How to Understand the “Hierarchy”
D. First Instance: Two Step Analysis
E. Second Instance: Appellate Review Standard
1. A Split among Federal Circuit Judges after Markman II
2. Cybor: Uniform Federal Circuit Case Law
3. Disagreements Continued after Cybor
4. The Supreme Court Teva Decision
F. Procedures for Determining the Doctrine of Equivalents
Chapter II?Chinese Claim Interpretation: Procedure Law
A. Chinese Court System in General
1. Trial by Judges
2. Lawyers
3. Technical Experts in Claim Interpretation
B. Evidence
C. Jurisdiction
D. First Instance—One step analysis
E. Second Instance: Appellate Review Standard
F. Procedures for Determining Doctrine of Equivalents
Chapter III?U.S. Claim Interpretation: Substantive Law
A. Source of Law
1. Statutes
2. Case Law
B. Structure of US Claims
C. Fundamental Rules
1. Claim Defines the Scope of Patent
2. All Elements Rule
3. Specifications
4. Prosecution History
5. PHOSITA—Philips
D. Defining Literal Claim Scope
1. Canons
2. Special Types of Claims
E. Expanding the Literal Claim Scope: Doctrine of Equivalents
1. Underlying Policy
2. Elements to Establish the Doctrine of Equivalents
3. Limitation to the Doctrine of Equivalents
Chapter IV?Chinese Claim Interpretation: Substantive Law
A. Sources of Law
1. Statute 080
2. The “Judge-Made Statute”: Judicial Interpretation
3. Case Law
B. Fundamental Rules
1. Central Role of Claims
2. The “All Feature” Rule
3. Description and Drawings
4. Prosecution History: The Estoppel Principle
5. PHOSITA—2009 and 2016 Judicial Interpretation
C. Structure of a Chinese Patent
D. Defining the Literal Claim Scope
1. Canons of Claim Interpretation
2. Special Types of Claims
E. The Doctrine of Equivalents
1. Elements to Establish the Doctrine of Equivalents
2. Limitation of Doctrine Equivalents: Dedication Principle
3. Limitation to the Doctrine of Equivalents: Estoppel Principle
Chapter V?Comparative Analysis
A. Policy
1. United States
2. China
B. Rules
1. Procedure
2. Substantive Law
Conclusion
Table of Cases and Other Authorities
Bibliography
Preface
The significance of claims cannot be emphasized too much in patent infringement litigation. As the former Chief Judge of the U.S. Court of Appeals for the Federal Circuit in 1990 stated, “the name of the game is the claim.” 1 In current U.S. and Chinese patent law, claims define the scope of patent rights. Interpreting claims to determine the scope of a patent is the first and crucial step in patent infringement. In the United States, where claim interpretation is a separate step in litigation, many infringement cases are settled once claim interpretation is decided by a court.
Because of the tremendous significance of the claims, they are typically drafted with special care to define the subject matter of patent protection definitely and clearly.2 However, the meaning of claim terms is still disputed from time to time in litigation. Litigators attempt to convince the court to adopt an interpretation of the terms in favor of their own clients. The literal scope defined by clarifying the meaning of the claim terms, together with the scope defined by the application of the doctrine of equivalents, determines the scope of patent protection resulting from claim interpretation in patent infringement litigation. 3
The United States has a long history emphasizing the role of the patent system in promoting technological innovation and economic growth. Similarly, China has been working on a transition from a manufacture-based economy to an innovation-based economy, and published the Outline of National Intellectual Property Strategy, which emphasizes the significance of patents in making this transition. To promote patent and innovation policy, patent claims should be interpreted to maintain a fine balance between two competing interests: (1) giving incentives to further innovations for inventors and (2) securing legal certainty for the public.4
This study is a comparative study of claim interpretation in the United States and China with a focus on the function of the rules. Because the U.S. patent law and Chinese patent law have very different conceptual frameworks and U.S. and Chinese courts define some rules for claim interpretation differently, it is easy to conclude the protection scope resulting from claim interpretation is very different between these two countries. However, these differences may be artificial and the rules may function similarly to lead to a similar scope of protection. The U.S. and Chines law defines a few of rules of claim interpretation in very similar expressions. However, those rules do not always function in the same way. Therefore, this study addresses the question whether the rules of claim interpretation function similarly or differently in the United States and China.
In order to answer this question, this study examines information from various sources. This research focuses on different legal materials in the U.S. section and Chinese section, because the two legal systems operate differently. To examine the rules in the United States, this research mainly focuses on cases and statutes, while using literature including treatise, law review and journal articles, and books as a secondary reference. In contrast, to examine the rules in China, this research examines a variety of sources, including cases, statutes, judicial interpretations, policy documents and transcripts while using literature as a secondary reference.
Similar to the United States, cases and statues are still a focus for understanding claim interpretation in China. But in addition to cases and statutes, there is a unique source of law in China. This source of law is called “Judicial Interpretation”, which provides some significant rules in claim interpretation5. The instructions from the higher levels become important guidelines for judges in adjudicating cases. When a new judicial interpretation is issued, a representative from the Supreme People’s Court of China will be interviewed by the media and will give an official explanation to the media about the background and purpose of the new rules. The interview transcript is published by the Supreme People’s Court’s website and newspaper.
Since 2008, the Supreme People’s Court of China has held an annual Intellectual Property Judicial Conference, which is attended by Chinese judges nationwide. The conference enables judges to discuss the cutting-edge issues in intellectual property cases and resolve conflicting views. The transcripts of the major presentations are published in the China Intellectual Property Protection Yearbook. Both the interview transcripts and conference transcripts are viewed by judges and attorneys not only as aids to understand the policy but also as instructions on how to implement the law. The Supreme People’s Court and other patent related governmental institutions also periodically issue policy documents. Those policy documents do not provide instructions for adjudication, but explain the general policy trend.
Based on the cases, statutes and other related materials, this study explains how the U.S. and Chinese claim interpretation rules function to determine the scope of patent protection and how these rules reflect patent policy. Contrary to the common view in the Western world that China is reluctant to protect patent rights,6 Chinese patent claim interpretation rules function very similarly to those in the United States. This study will discuss Chinese rules, which are adopted from U.S., as well as rules which look different but function in the same way as U.S. rules, thus resulting in the same protection scope.
Moreover, Chinese claim interpretation has gone through an evolutionary process, which is similar to the U.S. patent law history. In the late 1990s, the U.S. courts started to give more weight to the public notice function of patent claims, and legal certainty with the protection scope resulting from claim interpretation.7 Following the U.S. trend, Chinese courts have also moved in the same direction to emphasize legal certainty.
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