First of all, what should the patent right protect?
In short, the patent right is to protect the inventor's technical contribution. So what is technical contribution? Technical contribution is the contribution made by the inventor in his invention idea, that is, the method to solve the problem, which is not available in the prior art. When the invention idea, that is, the method to solve the problem is brand-new, the invention idea, that is, the method to solve the problem, is the technical contribution made by the inventor as a whole. When only a part of the invention idea, that is, the method to solve the problem, is new, this part of the new technical content is the technical contribution made by the inventor. However, when this contains the inventive concept of the prior art, or takes the problem solution as a whole, this whole solution can also be called the technical contribution of the inventor. For example, when an important part of a car is damaged, we can of course say that this important part is broken, but when an important part of the car is damaged as a whole, it can obviously be said that this car is broken.
It should be noted here that the above-mentioned technical contribution does not refer to the specific physical product or method invented by the inventor, and its expression in the patent application document should at least not be the description and description of the specific physical product or method, but the description and description of the abstract thing "the invention idea, that is, the method to solve the problem". Because the object to be protected by the patent right, that is, the inventor's technical contribution, is actually the abstract invention idea contributed by the inventor, that is, the problem solution.
Secondly, what can patent rights protect?
The reason why the object to be protected by patent right is this abstract invention idea is essentially determined by the power of patent right, that is, what patent right can protect. Patent right is essentially a virtual right, so it is different from general property right. If the object of protection of general property rights in the property law is tangible, then the object of protection of patent rights in the patent law is abstract and intangible, specifically, the above-mentioned technical contribution, and its manifestation is the invention idea, that is, the method to solve the problem.
It is worth noting that patent rights are essentially prohibition rights and exclusive rights, not enforcement rights. To borrow the words of Francis Gurry, Director-General of World Intellectual Property, patent right is not the right to guarantee what you can do, but the right to guarantee what you can't let others do. Its protection of rights is achieved by prohibiting others from doing nothing, rather than ensuring what others can do. For example, you can realize the prohibition of the production, sale and even use of aircraft using nuts through the patent right of nuts. But it doesn't mean that you can freely manufacture this nut yourself, because when you manufacture this nut, you may infringe the patent rights of others in terms of materials, technology and even any aspects related to production. Another example is Apple's patents, such as sliding unlocking and rounded cuboid appearance, which are very conspicuous and simple. In the United States, the production and sales of many foreign mobile phone manufacturers such as Samsung and htc have been banned. But in fact, a mobile phone involves tens of thousands of new technologies and patents, but even if there are tens of thousands of new technologies and patents, as long as you use one of my patents, I can ban the production and sales of your whole mobile phone in a certain area and time through that patent, unless you don't use my patent or don't get my authorization. This is precisely the value and significance of the patent right and patent system to serve market competition and force industrial innovation.
In the above sense, the protection logic of patent right is from point to surface, not from surface to point. Specifically, it is to define an invention concept, that is, a solution to a problem, and form a protection range with clear boundaries. When other people's products or methods cover the problem solution with limited boundary scope, that is, when other people's products or methods adopt the problem solution with limited boundary scope, the patentee can prohibit others from producing the corresponding products with covered patent protection scope without permission, or using the corresponding methods with covered patent protection scope without permission, thus realizing the protection of their invention ideas and corresponding technical contributions.
So far, how should the inventor's technical contribution be presented when applying for a patent, or from what angle should it be presented to the patent agent, so that the patent agent can complete the effective and useful claim writing?
The following is an example of a ballpoint pen in Ronald D. Slusky's classic book "Invention Analysis and Patent Writing".
The drawings and words in the inventor's technical disclosure book are as follows:
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As shown in figure 1, the embodiment is that the ball L is pressed by the spring S at the neck of the pipe A, and the spring S pushes the rod G, the bearing H and the anti-wear ball K in turn. When the ball L is pressed against the paper, the spring contracts to adjust the ink flow to the ball L, so that when the pen moves, the ink can reach the paper from the ball.
Suppose that before the invention of ballpoint pen was put forward, there was no such pen in the prior art. Then, as a patent agent, how should I write a patent claim based on such technical contributions?
The following is the exclusive right 1 in two different claims.
The first one is:
1. A pen, comprising:
A tube with a convergent nozzle and adapted to contain ink
A spherical marking point protruding from the mouth, and
An ink flow regulator that elastically holds the marking point on the mouth.
The second is:
1. Pen with spherical marker.
So 1 which exclusive permission is better?
You might say that the second exclusive right, 1, has a wide range of protection, but it doesn't seem to reflect the inventor's technical contribution. The first kind of exclusive right 1 seems to describe the inventor's technical contribution more appropriately.
This brings us back to the question of what patent rights should protect. Thirdly, as emphasized above, the patent right is not to protect the physical product or method invented by the inventor, and the claim is not to describe and characterize the specific product or method, but to describe and characterize the idea of invention, that is, the method to solve the problem. So what is the key point of the so-called invention or problem solving? This key point is actually the "problem" or "technical problem" that the technical scheme aims at.
In the case of the above ballpoint pen, we should evaluate whether the first exclusive right 1 is well written or the second exclusive right 1 is well written. What are you evaluating, or looking at, or what is the first key point? The author believes that what we want to evaluate depends on the first key point, that is, whether the patent agent has mastered the inventor's invention idea, that is, the "problem" in the problem solution. And many patent agents may not have the consciousness of writing claims and showing technical solutions around "problems" at all. More just consider whether the technical features in the technical scheme are displayed in reasonable language, order and logic. In order to prevent the inventor from recognizing his own technical scheme after reading the claim. Just like in the case of ballpoint pen, if it is written as "a pen with spherical marks", it feels as if it is sorry for the inventor, or the inventor will blame himself for not writing his own technical contribution. If you think or do this, it will be completely divorced from the original intention of realizing patent protection through claims, and it will be difficult to realize real patent protection in the end. Because the full disclosure of technology is only a matter of specification, it should be completed in the specific implementation part of specification. The purpose of the claim is not to disclose technology, but to define technical contribution and existing technology. To define the boundaries of technical contribution, it is best to first determine the technical problems targeted by its technical scheme. According to the basic logic that the connotation is less and the extension is more, the technical features involved in the technical scheme are less, and the boundary range covered by the extension is larger. In order to minimize the technical features involved in the technical scheme, it is necessary to minimize the technical problems it aims at. Because technical problems are indispensable, the final result can only be to determine the only core problem.
Let's go back to the case of a ballpoint pen. Many people think that the technical solution should be to provide a ballpoint pen that can write. But in fact, this is only a superficial understanding of the contribution of invention, creativity and technology, and it is also a fatal mistake that many patent agents often make. That is to say, this understanding of technical problems does not actually explore the essence and essence of the inventor's invention ideas and technical contributions. So what is the essence and essence of the invention idea and technical contribution of the ballpoint pen inventor in this case? In other words, what is the lowest and most fundamental technical problem it solves? To put it simply, the technical problem that "the existing pen is not suitable for writing on rough surfaces" is solved by a pen with a marker ball. That is to say, the lowest and most fundamental technical problem that its technical scheme aims at is "how to make the pen suitable for writing on rough surfaces". When this basic problem is determined, the inventor's idea or solution to the problem is to write on the rough surface through a rollable ball, specifically, to write on the rough surface through a marker ball that can stick ink and play a marking role. Because the ball can roll, it solves or overcomes the problem that it is not suitable for writing on rough surfaces. Therefore, based on this basic problem, the technical scheme described in the claim of "pen with spherical marking points" is a logical and self-consistent solution to the problem without lacking necessary technical features. Therefore, as long as it is novel and creative, its patentability is completely no problem.
Comparatively speaking, the first exclusive right 1 looks good on the surface. It seems that the technical features in the exclusive right 1 have been reduced to a minimum. It is particularly desirable that the exclusive right 1 even covers pens without ink, because the exclusive right 1 only requires a tube suitable for containing ink, but it does not take ink as an element of the claimed feature combination. Therefore, the exclusive right 1 covers pens that are being manufactured. However, according to this writing, if the patent right is still valid today, the value of its rights may be greatly reduced, because many ballpoint pens that are put into production later do not have the technical characteristics of "ink flow regulator to keep the marking point on the mouth flexibly" defined in the exclusive right 1, but use ink with appropriate viscosity to closely cooperate with the ball socket to
Therefore, if the writing method of 1 exclusive right is adopted, the inventor's pioneering technical contribution to ballpoint pen will be fundamentally obliterated. If in the actual manufacture of ballpoint pen, the technical means of "ink flow regulator to keep the marking point on the mouth elastically" is replaced by the technical means of "using ink with proper viscosity to make the ball socket fit closely and ensure that the ink will not leak", then the exclusive right of 1 is actually invalid. That is to say, although the inventor made a groundbreaking technical contribution to the invention of the ballpoint pen, his patent right could not even earn a penny later because of the improper writing of the claim.
Readers may say that a visionary with considerable insight is needed to predict various possible deformations and improvements in the actual manufacturing process of ballpoint pens. However, in reality, such a visionary is not needed to foresee the future changes of this technology. In fact, a qualified claim means that even with different technological progress or changes, as long as a new product or method embodies or contains the solution to the core problem protected by the claim, the claim can ensure the exclusive patent protection for the new product or method.
As a patent agent, to do this, we must have the consciousness of writing patent claims, show technical solutions around "technical problems", and explore and grasp the lowest and most fundamental "technical problems" in the inventor's technical contribution. Because according to the point-to-point protection logic of patent protection, only by grasping the "root" of invention creativity or technical contribution can we achieve the largest, most effective and least easily evaded by competitors or latecomers. But in order for patent agents to do this, in addition to patent agents constantly improve their business capabilities. In fact, more importantly, when the inventor presents his own invention idea and technical contribution or problem solution to the patent agent, he should first summarize and refine his own invention idea, that is, what is the lowest and most fundamental "technical problem" to be addressed in the problem solution. If the inventor himself can turn "the technical problem of providing a writable ballpoint pen" into a more fundamental technical problem of "how to make the pen suitable for writing on rough surfaces". As long as the patent agent focuses on this technical problem, it is naturally easier to write the claims that better reflect the inventor's technical contribution from the bottom, which is more effective and useful, and can also prevent competitors and latecomers from evading it.
Therefore, in order to write high-quality or at least qualified patent claims, on the one hand, patent agents need to have the consciousness of writing patent claims around "technical problems", show technical solutions, and explore and grasp the lowest and most fundamental "technical problems". On the other hand, inventors also need to actively cooperate with the efforts of patent agents, or actively think about and refine the lowest and most fundamental "technical problems" in their own invention creativity and technical contributions. It is best to summarize this lowest and most fundamental "technical problem" and its solution in one sentence in the technical disclosure book. Only in this way can we promote and help patent agents to complete a patent application document with higher quality, at least reaching the passing level. However, if the patent agent can't grasp the "technical problems", such as the exclusive right of the first ballpoint pen case, 1, that is to say, the claim can only be considered as a failed claim if it is more appropriate and perfect in language and logic.