About the Author
Yin Xin, Master of Science, Peking University Health Science Center, is currently the Deputy Director of the Second Division of Medical and Biological Appeals of the Patent Reexamination Board. He has worked in the Medical and Biological Invention Examination Department of the Patent Office of the State Intellectual Property Office and the Patent Reexamination Board in the field of medical and biological examination, reexamination, and invalidation cases, and has participated in the trial of many major difficult reexaminations and invalidation cases. He has been selected as a senior training talent for intellectual property training and education by the State Intellectual Property Office and an expert in the examination business of the Patent Reexamination Board. Summary
Starting from typical cases of patent infringement judgment and patent invalidation request, this article discusses the interpretation of the scope of protection of closed and open claims and the criteria for patent infringement judgment, compares the relevant regulations and cases in other countries and regions, and discusses Rationalization suggestions are put forward for the patent authorization, right confirmation examination, infringement judgment standard and application document drafting of closed and open claims.

Key words: closed type, open type, interpretation of claims, determination of patent infringement

Claims play an extremely important role in the operation of the modern patent system. The drafting of patent application documents, the review of grant and confirmation cases, and the protection of patent rights after grant are all closely related to claims. Since claims need to describe and define complex technical content in language, and the language itself often has certain ambiguity and limitations, therefore, in the process of patent authorization, confirmation and patent infringement determination, it is often necessary The scope of protection of the claims is explained. According to the way of defining the technical features in the claims and the size of the scope of protection, the claims can be divided into two different types: open and closed. Among them, open-ended claims usually use the expressions of "comprising", "including", and "consisting mainly of...", which are interpreted as also containing components not mentioned in the claim. For closed claims, the expression "consisting of" should be used, which is generally interpreted as not containing components other than those stated in the claim. The way the claims are drafted has a great influence on the scope of protection after grant, and even determines whether the granted patent can obtain effective protection. Although the "Patent Examination Guidelines" clearly stipulates open and closed claims, there are few domestic studies and cases involving the scope of protection of such claims, and there are certain disputes in the industry about the scope of protection of such claims. Innovators are not clear about the possible impact of different drafting methods on patent protection, so they do not pay enough attention to the skills of drafting such claims. With the improvement of my country's patent system, clarifying the scope of protection of open and closed claims, on the one hand, helps to maintain the publicity of claims, and guides applicants and agents to choose the appropriate drafting method for patent applications. Reasonably protect their inventions and creations; on the other hand, it can also make the scope of protection defined by the claims consistent in the patent application and post-grant procedures, so as to maintain the balance of interests between the patentee and the public.
1. Typical cases of patent infringement and confirmation in my country

1. Beijing Nanchen Investment Co., Ltd. and others v. Shanghai Huayuan Aluminum Co., Ltd. and others in a patent infringement dispute case
The earliest case in my country involving the judgment of closed claim infringement is the patent infringement dispute case involving Beijing Nanchen Investment Co., Ltd. v. Shanghai Huayuan Aluminum Co., Ltd. In a closed definition method, the alleged infringing product also has a certain content of titanium metal in addition to the ingredients specified in the patent involved. In 2004, the Shanghai Higher People's Court held in the second instance that the claims of the patent involved in the case adopted a closed definition method, and the composition in the closed claim should not contain other components except for unavoidable impurities. The unavoidable impurities should be the usual content. Since the content of "titanium" in the allegedly infringing product is not the usual impurity content, the accused infringing product does not fall within the scope of patent protection. It can be seen from this judgment that, for closed claims, if a patent involves a technical solution “consisting of A, B, and C” and the components of the allegedly infringing product happen to be A, B, and C, Then the allegation of infringement is established; but if the alleged infringing product contains component D in addition to components A, B, and C, regardless of the function of the added component D itself or the combination of component D and other components or the effect, the alleged infringement is not established. On the contrary, for an open claim, as long as the alleged infringing product covers the above-mentioned A
The features of , B, and C, no matter whether new features are added or not, fully cover the scope of the patent claims, and thus fall into the protection scope of the patent right. In this regard, there is a view that, for composition inventions with closed claims, the method of determining patent infringement can hardly be called the principle of comprehensive coverage in the general sense.
2. Hu Xiaoquan v. Shanxi Zhendong Taisheng Pharmaceutical Co., Ltd. and other patent infringement cases
The aforementioned (2004) Shanghai Gaomin San (Zhi) Zhongzi No. 4 Civil Judgment has taken steps to explore the interpretation of such claims and the determination of infringement, but there are still differences in the industry's understanding of such claims. The interpretation of the scope and the principle of infringement determination are still unclear, and subsequent judicial decisions have not adopted the principles consistent with the above cases. For example, in Hu Xiaoquan v. Shanxi Zhendong Taisheng Pharmaceutical Co., Ltd. and other patent infringement cases, the disputed claim of the patent involved is: "A lyophilized powder injection of adenosine triphosphate disodium magnesium chloride, which is characterized in that it is composed of adenosine triphosphate disodium and magnesium chloride Composition, the weight ratio of the two is 100 mg to 32 mg.” The active ingredient and the proportion of the freeze-dried powder injection of the accused infringing drug are the same as the patent involved, the difference is that bicarbonate is added to the alleged infringing product Sodium and arginine as excipients. In 2010, the Shandong High Court made a (2010) Lu Min Zai Zi No. 33 Civil Judgment on the case, which held that the sodium bicarbonate and arginine in the accused infringing drug were only excipients, and the addition of excipients was part of the drug preparation process. Sodium bicarbonate and arginine are commonly used excipients in the pharmaceutical preparation process, and are not active ingredients that exert medicinal effects. When interpreting the closed claims involved in the case, "excluding other components" should not be understood Excipient ingredients are not included. Therefore, it is determined that the alleged infringing drug falls within the protection scope of the patent right in this case.
In order to unify the trial standards and clarify the principles of interpretation of closed and open claims, the Supreme People’s Court ruled to arraign the above case, and made the (2012) Min Ti Zi No. 10 Judgment in December 2012, which was included in the Supreme People’s Court In the court's 2012 annual report on intellectual property cases and in the Supreme People's Court Intellectual Property Trial Case Guidance. According to the "Provisions of the Supreme People's Court on Case Guidance Work" (Fa Fa [2010] No. 51) and the interpretation of the relevant person in charge of the Supreme Court, when a judge hears a similar case, he should refer to the guiding case but fails to refer to it. convincing reasons. Therefore, this case is of great significance to the establishment of patent infringement determination rules for closed claims.
The Supreme Court held that: the patent dispute claims in this case use the expression "consisting of...", which is a closed claim, and should be interpreted as the claimed freeze-dried powder injection consists only of adenosine triphosphate disodium and magnesium chloride, except for possible There are no other components except the impurities in the content. Excipients do not belong to impurities, and are also within the exclusion scope of claim 2 of the patent in this case, and the accused infringing products do not fall into its protection scope. Accordingly, the original judgment was revoked.
(2012) Min Ti Zi No. 10 Judgment clarifies the principles of interpretation of closed claims and the criteria for judging patent infringement, that is, closed claims generally do not contain content other than their limited components. If the alleged infringing product or method has Where there are other features besides the technical features clearly stated in the claims, it shall be determined that they do not fall within the protection scope of the claims.
3. Hebei Xinyu Welding Industry Co., Ltd. v. the respondent Yichang Monkey King Welding Wire Co., Ltd. Invention patent infringement dispute case

In the subsequent judicial practice, the Supreme Court upheld the above principles and further explained them in the judgment documents. In the case of the retrial applicant Hebei Xinyu Welding Industry Co., Ltd. and the respondent Yichang Monkey King Welding Wire Co., Ltd. for infringement of invention patents, the Supreme Court made a [(2013) Min Shen Zi No. 1201] ruling. It points out that, for closed claims, if the alleged infringing product has other features besides the technical features clearly stated in the claim, it should be determined that the accused infringing product does not fall within the scope of protection of the claim. Otherwise, in the authorization and confirmation procedure, the rights will be interpreted strictly, and it will be easier for the obligee to avoid the existing technology to obtain authorization; in the infringement lawsuit, the interpretation will be lenient, covering a wider range of protection, and the obligee will benefit from both sides, and the law will apply Disjointed situation. The case was included in the Supreme Court's 2013 Annual Report on Intellectual Property Cases.

4. Beijing Century Lianbao Fire Protection New Technology Co., Ltd. v. the Respondent Patent Reexamination Committee Administrative Dispute over the Invalidation of Invention Patents

All of the above are patent infringement litigation cases, and it is not clear whether the different interpretation rules for closed and open claims are applicable in the authorization and confirmation procedures. In this regard, in the administrative dispute case between Beijing Century Lianbao Fire Protection Technology Co., Ltd. and the respondent Patent Reexamination Board for the invalidation of invention patent rights, the Supreme Court made a judgment [(2012) Xingtizi No. 20] (hereinafter referred to as) , which pointed out that "contains" and "comprising" have the meaning of not excluding unspecified content, and thus become an important symbol of open patent claims; All technical fields within have general applicability. The patent involved in the case belongs to the invention patent in the mechanical field, and claim 1 of the authorized announcement claims to protect a pulse ultrafine dry powder automatic fire extinguishing device, which contains a starter and a housing containing ultrafine dry powder fire extinguishing agent (cold aerosol fire extinguishing agent), which is characterized in that, It contains: shell, ... activator .... Regarding this patent, the reference document 1 submitted by the invalidation requester discloses a fire extinguishing device with porous parts, but the patent technical solution of this case does not mention this part. The Patent Reexamination Board No. 14523 Invalidation Request Examination Decision found that there are three distinguishing technical features between Claim 1 and Attachment 1 of this patent, but did not regard the lack of porous parts in Claim 1 as a distinguishing technical feature, because there is no porous in Claim 1 of the patent in this case Correspondingly, it does not have the function of the porous part described in Reference 1. Therefore, it is determined that the lack of the porous part does not make the technical solution of Claim 1 possess an inventive step, thus declaring that all the patent rights in this case are invalid. Both the judgments of the first instance and the second instance upheld the conclusion of the invalidation decision. The patentee filed a complaint with the Supreme Court, and the Supreme People's Court ruled to review the case, and made a judgment in 2013 [(2012) Xing Ti Zi No. 20]. The Supreme People's Court held that: the 2001 edition of the Examination Guidelines only stipulated three types of open, closed and semi-open in Section 3.2.1 of Chapter 10 of Part Two, "Several Provisions on the Examination of Invention Patent Applications in the Chemical Field". way of expression. Although the examination of the patent in this case should apply the 2001 edition of the "Examination Guidelines", and according to the "Examination Guidelines", the expressions of open and closed claims are only applicable to invention patents in the field of chemistry, but the common usage of open and closed claims The wording itself is a summary of the commonly used wordings for different types of claims in patent application examination practice, and the applicant should take into account the meaning of the wording itself. The meaning of the words "comprising" and "comprising" used in claim 1 of the patent in this case should be understood as not excluding unspecified structural components. Therefore, the Supreme Court upheld the invalidation decision and the conclusions of the courts of first and second instance.

2. Case Analysis
It can be seen from the above cases that the Supreme People's Court and the Patent Reexamination Board have adopted rules consistent with the "Patent Examination Guidelines" for the interpretation of closed and open claims in patent infringement litigation and patent confirmation procedures, that is, closed claims It is interpreted as generally not containing components other than those described in the claim, while an open claim may also contain other content in addition to the components stated in the claim. Therefore, once written as a closed claim, if the alleged infringing product is added with other components, it generally does not fall within the protection scope of the patent right. Judging from the contents of the above-mentioned judgment documents and invalidation decisions, the interpretation of the above-mentioned claims and the establishment of the principle of patent infringement determination are mainly based on the following considerations:
1. Maintain public trust in the scope of patent claims
As a departmental regulation formulated by the State Intellectual Property Office in accordance with the Patent Law and its implementation rules, the "Guidelines for Patent Examination" is the basis for examination by the patent administration department of the State Council in the patent authorization and confirmation procedures, and it is also the basis for patent applicants to write and revise patent application documents. It is also an important basis for the public to understand the claims of granted patents.
Beginning with the 1993 edition of the Examination Guidelines, Chapter 10 of Part Two, "Several Provisions on the Examination of Patent Applications for Inventions in the Chemical Field", has provisions on the closed, semi-open and open limitations of composition claims. The 2006 edition of the Examination Guidelines deleted the concept of semi-open claims, and included several expressions of the original semi-open claims into open claims. At the same time, starting from the 2006 edition of the Guidelines for Examination, provisions on open claims and closed claims have also been added to the general chapter of the claim drafting specification, that is, Part Two, Chapter 2 "Claim Drafting Provisions". According to the above regulations, the scope of protection of open claims is larger, but they are more likely to be challenged in the substantive examination stage about "novelty", "inventiveness" or "claims are not supported by the description". In contrast, closed claims are easier to obtain authorization through substantive examination, but their scope of protection after grant is smaller than that of corresponding open claims.
It can be seen that the relevant regulations on closed and open claims in the Guidelines for Patent Examination are consistent. In order to maintain the public's trust in the protection scope of the patent claims, if the patentee chooses the drafting method of closed claims due to various reasons in the patent grant procedure, in the patent infringement litigation procedure after the grant, if the patentee Claiming that its closed claims also contain other undefined components that the public cannot predict, the patentee will be in a favorable position in both the grant and infringement procedures, which may damage the interests of the public. In order to maintain the trust of the public, determine the protection of patent rights in patent infringement proceedings
When determining the scope, the relevant provisions in the patent grant procedure should be respected, and a consistent position should be adopted with the patent grant procedure.
2. Principles of Compromise Interpretation of Claims
According to the first paragraph of Article 59 of the Patent Law, the scope of protection of a patent right shall be determined by the content of the claims, and the description and drawings may be used to interpret the claims. The above case also embodies this principle of compromise interpretation. For example, in Hu Xiaoquan v. Shanxi Zhendong Taisheng Pharmaceutical Co., Ltd. and other patent infringement cases, the patent involved belongs to a pharmaceutical composition patent, which adopts the "closed" method of "consisting of... To limit. At the same time, the specification of the patent involved in the case did not record or suggest that the patent involved in the case added auxiliary materials in the production process. After reading the specification and claims of the patent involved, those skilled in the art