ARTICLE
19 January 2021

Contradictory Interpretations Of Means-Plus-Function Claims In China

FI
Foundin Intellectual Property

Contributor

Foundin Intellectual Property logo
Foundin IP, a subsidiary and an independent legal entity under Chofn group, is responsible for handling all international patent matters for domestic and overseas applicants of the group. As from 12 April, 2021, it has changed its name to "Foundin Intellectual Property”. Foundin remain to be a subsidiary of Chofn handling all the incoming and outgoing patent work.
According to the Chinese Patent Law and practice, means-plus-function claims are interpreted differently at the time of Chinese patent prosecution and Chinese patent litigation.
China Intellectual Property
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According to the Chinese Patent Law and practice, means-plus-function claims are interpreted differently at the time of Chinese patent prosecution and Chinese patent litigation.

Basically, while "means-plus-function" claims are interpreted as "any means that could achieve the function" by examiner(s) during patent examination (i.e., a broad claim that is difficult to be granted), such claims are merely interpreted as "embodiments disclosed in the Specification, or equivalent thereof" by the judge(s) during patent litigation (i.e., a relatively narrow claim that makes it difficult to enforce).

Apparently, the CNIPA and the Court(s) did not reach a consensus on how to interpret "means-plus-function" claims at examination stage and at enforcement stage. However, such a discrepancy indicate that both CNIPA and the Court(s) do not like "means-plus-function" claims and thus treat such claims in a way that is not in favour of the patentee(s).

Therefore, if the applicant wants to pursue a patent protection in China with means-plus-function claims, it would be highly recommended to at least add some structural claim(s) as fall-back positions, in order to put the patent application at a better position during both prosecution and litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
19 January 2021

Contradictory Interpretations Of Means-Plus-Function Claims In China

China Intellectual Property

Contributor

Foundin Intellectual Property logo
Foundin IP, a subsidiary and an independent legal entity under Chofn group, is responsible for handling all international patent matters for domestic and overseas applicants of the group. As from 12 April, 2021, it has changed its name to "Foundin Intellectual Property”. Foundin remain to be a subsidiary of Chofn handling all the incoming and outgoing patent work.
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