Combination of open and closed expressions in claim writing-Song Ziliang et al.

introduction

In the second chapter of the second part of the Patent Examination Guide, it is stipulated that in general, open-ended claims should adopt "including", "including" and "mainly composed of". . . . . . Composition ",which means that it can also contain structural components or method steps not mentioned in the claim. Closed claims should adopt the expression of "composed of", which is generally interpreted as not containing structural components or method steps other than those stated in the claim.

The purpose of this paper is to discuss the practice and theory of combining open and closed expressions in claim writing through specific cases, so as to better obtain authorization and protection.

1. Basic forms of claims that are wholly open and partially closed.

An X, including A and B, is characterized in that B consists of B1, B2 and B3.

This way of writing is not specifically listed in the review guide, and it can be considered as a special form or type of open claim. Because of its particularity, it is necessary to discuss its practice and theory.

2. Case-based practical discussion

The following cases involve an overall open and partially closed writing style.

Claim 1 of the example application is "an explosion-proof wall, which is characterized by comprising at least one row of structural column layers and a ground anchoring device for fixing the structural column layers on the ground; The structural column layer is composed of several structural column monomers evenly arranged at equal intervals. "

See the attached figure, the examiner cited the comparison document, and thought that Claim 1 of the example application did not possess novelty.

However, in Claim 1, the partially closed expression "The structural column layer is composed of several structural column units arranged at equal intervals" has been adopted, which is the key feature to realize its technical effect. Its energy dissipation mechanism is that the explosion wave will interfere and diffract when it encounters the cylinder, and part of the explosion wave will pass through the space between the column units, thus effectively reducing the explosion load. In the comparison document, walls are installed between the structural column units 20, so that the explosion wave cannot pass through. In view of this, in order to better reflect the difference, a reply added "an empty space is provided between adjacent structural column monomers" to Claim 1 based on the attached drawings.

Although there is no clear record of the above-mentioned features in the original text of the example application, based on the closed expression in the original application document that "the structural column layer is composed of several structural column monomers arranged evenly at equal intervals", it will not lead to the problem of modification beyond the scope. The examiner subsequently agreed with this.

In this example, Claim 1 adopts an overall open and partially closed writing mode, and the closed expression mode can reflect its technical effect and is suitable for the applicant to argue.

It should be noted that, for this case, the feasible way of defense is not unique. The way of defense introduced here is a reference practice to try to combine open and closed expressions, which has reference significance. In addition, it can be seen that this case can be modified because of the relevant content support in the original application documents, which is different from the scheme without interval in the comparison documents. From this, we can see the importance of relevant original records to the interpretation and modification of claims.

3. Relevant practice and theoretical discussion.

In the above-mentioned cases, the overall open and partially closed writing method not only avoids the narrow overall protection scope of closed claims, but also embodies creativity through the closed expression of certain features.

For this way of writing, the claim can be interpreted according to the provisions of the guide: as a whole, the claim can also contain structural components or method steps not mentioned in the claim, and as for the closed part, it can be interpreted as not containing structural components or method steps other than those mentioned in the closed part.

Regarding the open and closed expressions of the claims, the relevant provisions of the review guide are suggestive and guiding. Theoretically, as long as there is no ambiguity in the expression of specific features in the claim and the logical relationship in the claim is clear, the composition of the technical scheme to be protected and the boundary of the protection scope can be clearly defined, and the requirements of public stability expectations can also be met.

On this basis, the author believes that the flexible use of different expressions in the practice of writing claims can be open and inclusive. For example, for open and closed expressions, no matter the whole or any part of the features of the claim, they can be freely combined and used according to the characteristics of the technical scheme and the needs of actual protection. In this way, the claims can be generally expressed by the following formula:

F（X）=F（A）+F（B）+…。

Among them, F(A) and F(B) can be further developed as follows:

F（A）=F（A1）+F（A2）+…。

F（B）=F（B1）+F（B2）+…。

Any f in the above expression can be selectively expressed in an open or closed way.

Flexible use of open and closed expressions in writing is also recognized in the industry. Some people put forward that "when applying for a patent, the patentee can choose the appropriate writing method in various ways, such as opening, closing, active ingredient closing and partial closing, according to the specific situation, so as to obtain the appropriate scope of protection" [i].

4. Conclusion

To sum up, in the practice of patent writing, flexible combination of open and closed expressions can sometimes get better authorization and protection, which has reference significance.

Jian li, Patent Document Writing from the Perspective of Patent Infringement Litigation [J], Patent Agency, 2015/ No.1, pp. 10-15.