China: Introduction To The Functional Feature In Chinese Patent Practice

A technical feature defining functionality is generally referred to as a functional feature. Concerning a functional feature, several issues worth looking at: first, what feature can be a functional feature and the difference between a functional feature and a generic concept; second, how to interpret a functional feature in the granting, verifying and operating of patent right; third, and more specific, how to interpret the functional feature of an invention in the case of computer programs.

1. What is a functional feature?

In the Patent Examination Guidelines 2010, no specific definition is given as to a function feature; but from the context, a functional feature comprises function feature and effect feature. 1 In the Judicial Interpretation by the Supreme People's Court, it is defined as 'the technical feature described by function and effect'.2 In the Draft for Public Comment of the latest Judicial Interpretation by the Supreme People's Court, it is further clarified that 'technical feature described by the functions and effects in the claims is a functional feature, which is the technical feature that defines structure, components, steps conditions or their relations only by the functions and the effects in an invention.3 Generally speaking, a functional feature is the technical feature defining by functions and effects but not those defining by structures and shapes.'4

In the Draft for Public Comment mentioned above, it is further stipulated that "technical terms proven in the evidence as being conventional or can be directly and explicitly determined only based on the claims as to their technical content shall be excluded'. In the drafting notes, the Supreme Court explains that a functional feature shall only by a purely functional one, but shall not include the technical features appearing to be describing functions but containing an appointed meaning, such as amplifier or transformer etc.; also excluded is function modules in the field of communication, which is the one whose technical content can be determined directly and explicitly only on the base of claims.5

The Supreme People's Court states clearly in its judgment in a retrial case involving infringement of utility model patent right, Shenzhen Amphenol East Asia Electronic Technology LLC v. Shenzhen Shinning electronic Co., Ltd., that the technical feature with an appointed meaning is not a functional feature.6 In the second trial case involving infringement of invention patent right, Nessei ASB Machine Co., Ltd. v. Liuzhou Jingye Machine LLC, the Beijing People's High Court finds that the party concerned cannot prove that the technical feature described by function is a technical feature generally known to the ordinarily skilled persons in the art, and it therefore should be deemed as a functional feature.7 There is no mentioning in the precedents so far of a function module not belonging to a functional feature.

It should be noted that functional feature is different from a purely functional claim, which is not supported by the specification and is not allowed. Further, functional feature is also different from generic concept. Genetic concept is generalization of specific features with common attributes. A typical example comparing a genetic concept and specific concept is metal as appose to copper, iron and aluminum.

2. Interpretation for Functional Features

Confusion with functional feature mainly lies with inconsistency in its interpretation in the granting, verifying and suing for infringement of rights.

Regarding rules for the examination on functional feature, the Patent Examination Guidelinesonly mentioned Article 26, paragraph 4 of Chinese Patent law,8 which relates to whether or not examination on functional feature shall be based on specification. The Patent Examination Guidelines explicitly stipulates that functional features included in claims should be interpreted as to cover all embodiments of the functions that can be achieved.9 If a function limited by the claims is achieved by a certain way described in the embodiments of the specification, and the skilled persons in the art can't ascertain that this function can be achieved by alternative embodiments not recorded in the specification, or there are reasons for the skilled persons in the art to believe that one or more ways included in the functional limitations cannot solve the technical problem the invention and the utility model intended to solve and achieve the same technical effects, the claims cannot adopt the way of functional limitation that covers the alternative embodiments or the functional limitations that can't solve the technical problem of the invention or utility model.

Regarding other cases, where for example issues as to whether or not the claims have novelty and creativity, and whether or not the claims are clear are involved, no clear rules are set out in the Guidelines as how to interpret functional feature. It's generally believed that the same rules for interpretation as described above are to be followed in examination process.

In the examination procedures of the Patent Reexamination Committee, including its reexamination procedures after receipt of a decision of rejection as well as its patent invalidation procedures, the standard adopted for reexamination is in conformity with the one said above.

In civil litigation for patent infringement, functional feature should be interpreted when confirming the protection scope of the claims to determine the content of the functional feature. The currently effective Judicial Interpretation states that 'regarding the technical feature described by functions and effects in the claims, the People's Court should determine the content of the technical feature, taking into account the specific embodiments and their equivalents of the functions or the effects described in the specification and drawings attached'.10 This is different from the interpretational rules stipulated in the Patent Examination Guidelines 2010, but similar to the American interpretational rule of 'embodiments plus equivalents'.

The Draft for Public Comment of the latest Judicial Interpretation by the Supreme People's Court has further clarified on the internal equivalents for interpreting the functional features, and the external equivalents which are traditional equivalents suitable for the functional features. For the internal equivalents, the judgment time is the filling date, and for the external equivalents, the judgment time is before the date of occurrence of infringement and after the date of filling.11

In the administrative proceedings against a decision from patent reexamination affirming the rejection decision or against a decision from examination on the request for invalidation, regarding functional feature, one view is that the widest reasonable scope for interpretation rules should be adopted, which covers all the embodiments; another view is that the interpretation rules provided for in the Judicial Interpretation described above should be adopted in infringement litigations.

In an administrative dispute case patent invalidation, Puluma"Platt & LuebeckCo., Ltd v. Patent Reexamination Board of State Intellectual Property Office of the P. R. C., the Beijing No.1 Intermediate People's Court clarified, in relation to functional features, that the interpretation rules stipulated in the Patent Examination Guidelines to be used to treat authorization and verification disputes are different from the interpretation rules stipulated in the Judicial Interpretation to be used to treat patent infringement disputes.12 In the patent reexamination dispute of Baoan XU v. Patent Reexamination Board of State Intellectual Property Office, the Beijing No.1 Intermediate People's Court adopted the interpretation rules set out in the Patent Examination Guidelines for interpreting the functional features.13 It should be noted that, in these two cases, the dispute over functional features is whether they are in conformity with Article 26, paragraph 4 of Chinese Patent law, i.e., whether they are based on the specification.

In the two administrative decisions made recently by Beijing Supreme People's Court, the interpretation rule for infringement litigations is adopted in interpreting functional features.14 In both cases, interpretation of functional features happened in judging the novelty and creativity of the claims.

Interestingly, the State Intellectual Property Office proposed a compromise rule regarding interpretational rules for functional features in judging on patent infringement: for the technical feature in the claims described by function and effect, it should, in principle, be understood as covering all the embodiments achieving the said function; but in the case of functional feature not supported by the specification, the scope of technical feature should be determined by taking into account specific embodiments and their equivalents achieving the function and effect, which are described in the specification and the attached drawings.15 However, according to Article 65, paragraph 2 of Regulations of Patent law, claims not supported by the specification should be deemed invalid. Obviously, there are conflicts between the rules said above. Considering that the State Intellectual Property Office is trying its best to strengthen administrative measures for enforcement of the law, other problems may arise if the Guideline formally takes effect.

3. Typical Problems in relation to computer program related inventions

In recent decades, due to rapid development of information technology, patent applications for software are increasing dramatically. To deal with patent applications for computer programs, one chapter is included in the Patent Examination Guidelines to specifically govern examination of patent application for invention on computer programs.

This chapter stipulates that claims of an invention patent application can be drafted as a claim on method or a product being a device implementing the method.

For the product claim, the chapter explicitly lists claims for the function module architecture, while allowing traditional drafting manner for the product claim to be further adopted in practice. Traditional drafting manner for product claims is more adopted by Japanese applicants. But recently, this manner of drafting tends to be less used. By this drafting manner, drawings of the function blocks are usually made, with each of the function blocks being described in the specification and limited as a component of the device in the claims. During examination, the examiner will check that, as a product claim, whether its structure is clear and whether each component is supported by the specification.

Claims on function module architecture is device claim drafted on the base of computer program flow and according to the way corresponding to each step of the computer program flow or to the way corresponding to the method claim reflecting the computer program flow. On this kind of claims, this chapter clarifies that each component of the components of the device claim should be construed as function module established for each step of the steps implementing the program flow or the method, and the device claim defined by such a set of function modules should be construed as the function module architecture which achieves the solution mainly by the computer programs described in the specification, but not to be construed as entity device achieving the solution mainly by the hardware mode.16

In the practice of examination, drafting manner for claims on function module architecture is a request for format. If the method claim can be granted, the device claim needs only to be modified corresponding to the method claim. And the examiner will not examine the device claim again.

The applicants, considering possible infringement litigations, want in most cases to draft at least one set of product claims. However, it remains unclear as how to determine the protection scope of the above mentioned claims. Under the current system, interpretation of features included in this type of product claims should follow the relevant rules in the Judicial Interpretation concerning interpretation of functional features.17 The recent dispute over patent right infringement and patent invalidation, Nokia Corporation v. Shanghai Huaqin Telecom Technology Co., Ltd., have attracted wide attention, and the key issue involved is interpretation of claims for invention relating to computer program, including determination and interpretation of functional feature.18 The product claim 7 of the granted patent involved adopted the drafting manner having the term of 'configured to' added before every step corresponding to the method claim, which was considered a function feature by the Shanghai High People's court. According to the interpretation rule for infringement litigations mentioned above, the court should determine the content of technical feature by taking into consideration the way of achieving the function and effect as described in the specification and the attached drawings or its equivalent. But Shanghai High People's Court finds that as the specification of the paten at issue has not recorded the specific way of achieving the corresponding function as to be 'configured to', protection scope of the claim 7 involved cannot be determined.

4. Development Tendency and Suggestions

China is has always been improving its patent system since its establishment. In the development process of the Chinese patent system, experiences from patent systems of other countries have been studied on a continuous basis. Currently, the examination procedure of the Patent Office and the Patent Reexamination Board is more affected by the European patent system, while the juridical practice is much influenced by American patent system.

With social-economic development in China, patent examination and juridical practice will change and develop along the way. Therefore, when applying for a patent, the current patent examination and juridical practice should be considered but not to be dictated by them. First, a suggestion is that commonly used basic principles should be followed as of importance to make the scheme clear in drafting applicant document, instead of focusing too much on the drafting skills. Next, it's suggested that application may include sets of claims drafted in different manners, even the form of claims that are difficult to be granted rights under current examination practice. For example, product claim containing both hardware part and software part but having improvement only in the latter can recently be granted relatively easily. In addition, it's suggested that claims not be given up too readily, and, especially, one should restrain from deleting claims proactively, but should make effort till the end to get all the claims granted.

Regarding specifically functional features in claims, a suggestion is that to record as much embodiments as possible in the specification. On the one hand, it helps to pass the examination under Article 26, paragraph 4 of Chinese Patent law, i.e., concerning if specification is used as a basis. On the other hand, wider protection scope can, according to recent juridical practice, be obtained through interpreting.19 The description of the specific embodiments should therefore be clear and specific without vagueness.

With respect to computer program related inventions, it's suggested that the algorithm in specification be described specifically in a manner of progressive increasing of levels. Regarding a key step, a more specific algorithm corresponding to the subroutine or module implementing the step should be described. Furthermore, it's suggested that a concise description be given to operating environment of a computer program and process achieving the object of the invention by computer program in combination with hardware devices. Also, a brief description may be given by way of a list to other possible operating conditions and other forms of combination.

Footnotes

1 Patent Examination Guidelines, Part 2, Chapter 2, Section 3.2.1.

2 Interpretation of the Supreme People's Court concerning Some Issues on Applied Laws for Hearing Patent Infringement Dispute Case, No. 21 Law Interpretation (2009), Arc.4.

3 Interpretation of the Supreme People's Court concerning Some Issues on Applying Laws for Trial in Patent Infringement Dispute Case (2) (Draft for Public Comment), Arc.10. Other regulatory documents can also stipulate the definition and interpretation of functional feature, e.g., Beijing High People's Court , Arc.16; Shanghai High People's Court , Arc.4-7; Jiangsu Province High People's Court Patent Infringement Dispute Case Trial Guide (Nov. 2011); Patent Infringement Trial Standard and Patent Counterfeit Behavior Identification Standard Guide drafted by State Intellectual Property Office in 2013, Part 1, Chapter 1, Section 5.3.

4 In the civil judgment of Gao Min Zhong Zi No.1151 (2014), the Beijing High People's Court decides that 'the distinctive technical feature (6) of the claim 1 of the patent involved, i.e., 'is arranged to enable the whole inner space with the connecting structure of fluid seal', wherein, the 'connecting structure' is not limited by the way of shape or structure limination, but is limited by 'is arranged to enable the whole inner space with the connecting structure of fluid seal', which is obviously a functional limitation.'

In the civil judgment of Gao Min Zhong Zi No. 723 (2014), the Beijing High People's Court holds that 'the appended technical feature of the claim 3 of the patent involved further limits the bag transfer element, and describes the names of components included in the bag transfer element, and the respective function of the holding device, translational rotation element and bag picking element, but not describe the features of structure, material, etc, of them. So, referring to the bag transfer element and the translational rotation element, it's still a technical feature described by function'.

5 Drafting Instruction of

6 In the civil judgment of Min Shen Zi No. 1318 (2011), the Supreme Court believes 'in addition, the skills in the art can learn from the claims, specification and the appended figures of the patent involved that the 'locating slot' is a slot structure to fix and locate the frame end of the dovetail groove which is used to connect the body. And the 'locating slot' is a well known and conventional concept, but not a functional technical feature.'

7 In the civil judgment of Gao Min Zhong Zi No.4408 (2013), the Beijing High People' s Court believes 'in this case, Nessei ASB Machine Co., Ltd. claims the invention patent 'Injection Stretch Blow Molding Device', the claim 1 comprises 'an injection molding element' and 'a stretch blow molding element', and limits the functions of the elements only but not limit the specific structures of these elements, so the 'injection molding element' and 'stretch blow molding element' should be identified as functional features in accordance with the common understanding. Even though the Nessei ASB Machine Co., Ltd. advocates that the 'injection molding element' and 'stretch blow molding element' are the well-known technical features to the skills in the art and should not be identified as functional features, but which is not proved with evidence. So we don't support this claim claimed by the Nessei ASB Machine Co., Ltd.'

8 Article 26, Paragraph 4 of Chinese Patent Law disputes 'the claims shall be supported by the description and shall define the extent of the patent protection sought for in a clear and concise manner.'

9 Patent Examination Guidelines, Part 2, Chapter 2, Section 3.2.1.

10 Interpretation of the Supreme People's Court concerning Some Issues on Applying Laws for Hearing Patent Infringement Dispute Case, No. 21 Law Interpretation (2009), Arc.4.

11 Interpretation of the Supreme People's Court concerning Some Issues on Applying Laws for Trial in Patent Infringement Dispute Case (2) (Draft for Public Comment), Arc.10.

'Compare to the essential technical feature achieving the function and effect said above and described in the specification and the figures, the corresponding technical feature of the prosecuted infringing technical solution realizes the same function and achieves the same effect by fundamentally the same mean, and can be conceived by the skills in the art in the filling date without creative works, the People's Court shall identify that the corresponding technical feature is the same as functional feature.

' Compare to the essential technical feature achieving the function and effect said above and described in the specification and the figures, the corresponding technical feature of the prosecuted infringing technical solution realizes fundamentally the same function and achieves fundamentally the same effect by fundamentally the same mean, and can be conceived by the skills in the art after the filling date and before the date of the infringement occurs without creative works, the People's Court shall identify that the corresponding feature is equivalent with functional feature.'

12 In the administrative judgment of Yi Zhong Zhi Xing Chu Zi No. 2307 (2011), the Beijing No.1 Intermediate People's Court believes that 'we hold that the protection scope of the claims for the patent right shall be determined by the People's Court according to the law and not limited by the parties' propositions. The article 56, paragraph 1 of the Patent law 2001 disputes that 'the scope of protection of the patent right for invent or utility model shall be determined by the terms of the claims. The description and the appended drawings may be used to interpret the content of the claims.' Referring to the interpretation method for a functional feature, the Patent Examination Guidelines and the Interpretation of the Supreme People's Court concerning Some Issues on Applying Laws for Hearing Patent Infringement Dispute Case stipulate the suitable methods for right authorization, verification disputes and patent infringement disputes respectively. The Part 2, Chapter 2, Section 3.2.1 of the Patent Examination Guidelines 2006 stipulates that 'generally, for the product claims, try to avoid limiting the invention by function or effect features, only in the cases of a technical feature cannot be limited by structure features or the limitation is more suitable by function or effect features than structure features, and the function and effect can be verified directly and certainly by the experiments or operations in the specification or by the conventional means in the art, limiting the invention by function and effect features is allowed.' 'For the technical features limited by functions in the claims, it should be construed as covering all the embodiments which can achieve the functions.' The Arc.4 of the Interpretation of the Supreme People's Court concerning Some Issues on Applying Laws for Hearing Patent Infringement Dispute Case stipulates that 'for the technical features described by function and effect in the claims, the People's Court shall determine the content of the technical features in accordance with the specific embodiments and their equivalents of the function or effect in the specification and appended figures.' The provisions of the Justice Interpretation of the Supreme People's Court and Patent Examination Guidelines reflect the legislation original intention of balancing the benefits of the patentees and the public. One of the basic principles of the patent system is that the protection scope of one patent right protected by law is corresponding to its attribution to prior art. As a drafting manner of covering all, the literal protection scope of the functional feature is much wider and also has more limitation to the freedom of the public than the drafting manner of structure feature. In some certain cases, it will limit and narrow the space of the latter innovations. In the cases of right authorization and verification disputes, the function feature is construed as covering all the embodiments achieving the function or effect, but in the cases of infringement disputes, the functional feature is construed as the specific embodiments and their equivalents of the function or effect described in the specification and the appended figures, which help to encourage the applicants to disclose more specific embodiments when they adopts the drafting manner of functional feature, so that the claims of the patent application can meet the requirement of summarizing appropriately to get the support of the specification on one hand, and on the other hand, the authorized patent can achieve the protection corresponding to the disclosed content in the specification and avoid protecting the authorized patent inappropriately and broadly which blocks the latter innovations. In conclusion, in the cases of right authorization and verification disputes, the function feature is construed as covering all the embodiments achieving the function or effect.'

13 The Administrative Judgment of Yi Zhong Zhi Xing Chu Zi No. 2203, (2012)

14 The Administrative Judgment of Gao Xing Zhong Zi No. 2396 (2013) and the Administrative Judgment of Gao Xing Zhong Zi No. 1293 (2014)

15 Patent Infringement Judge Standards and Patent Counterfeit Behavior Identification Standards Guide drafted by State Intellectual Property Office in 2013, Part 1, Chapter 1, Section 5.3.

16 Patent Examination Guidelines, Part 2, Chapter 9, Section 5.2.

17 Referring to the claims with the function module architecture, the Justice Interpretation Draft for Public comment said above intends to exclude it, but the Draft for Public Comment is not yet passed and also doesn't define how to determine the protection scope of such claims.

18 Nokia Corporation is the patentee of the invention patent No. 200480001590.4. In 2010, Nokia Corporation accused Shanghai Huaqin Telecom Technology Co., Ltd. for infringing its patent in Shanghai No.1 Intermediate People's Court. In June 21, 2013, the Shanghai No.1 Intermediate People's Court made the decision of Hu Yi Zhong Min Wu (Zhi) Chu Zi No. 57 and believed that the protection scope of the claim 7 cannot be determined, so the infringement litigation of the Nokia Corporation was rejected. And Nokia Corporation refused to accept the decision and appealed to the Shanghai High People's Court. In Feb 24, 2014, the Shanghai High People's Court made the decision of Hu Gao Min San (Zhi) Zhong Zi No. 96 which affirmed the original judgment. In Feb 2015, Nokia Corporation appealed to Supreme People's Court for retrial.

In Mar 31, 2011, Huaqin filled a request for invalidation to the Patent Reexamination Board for the patent. In April 20, 2014, the Patent Reexamination Board made the decision No. 18676 for the reexamination for invalidation request which pronounced that the claims 1, 3, 5, 6, 8 and 10 of the patent involved are valid. Nokia Cooperation rejected the No. 18676 invalidation decision and appealed to the Beijing No.1 Intermediate People's Court. In Dec 18, 2012, the Beijing No.1 Intermediate People's Court made the administrative judgment of Yi Zhong Xing (Zhi) Chu Zi No.3856 (2012) which affirmed the original judgment. The two parties rejected the judgment of first instance and appealed to the Beijing High People's Court. In June 18, 2013, the Beijing High People's Court made administrative judgment of Gao Xing (Zhi) Zhong Zi No. 890 (2013) which affirmed the judgment of first instance.

In June 15, 2012, Huaqin filled another request for invalidation to the Patent Reexamination Board for the patent. In Nov 8, 2014, the Patent Reexamination Committee made the decision No. 20580 for reexamination for the invalidation request which pronounced that all the claims of the patent involved are valid. Hereafter, Nokia Cooperation refused the invalidation decision and appealed to the Beijing No.1 Intermediate People's Court. The Beijing No.1 Intermediate People's Court made the administrative judgment of Yi Zhong Xing (Zhi) Chu Zi No.3544 (2014) which affirmed the invalidation judgment. Nokia Corporation rejected the judgment of first instance and appealed to Beijing High People's Court. In June 18, 2013, the Beijing High People's Court gave No. 981 administrative judgment which affirmed the judgment of first instance. It's said that the Supreme People's Court had a symposium to hear the related opinions on whether the protection scope of the claims of the patent involved is determinate in July 14, 2015.

19 in the Civil Judgment of Gao Min Zhong Zi No. 723, the Beijing High People's Court believes that 'Due to the bag transfer element and the translational rotation element in the claim 3 of the patent involved are functional limitation features, so the protection scope of the claim 3 should be determined in accordance with the specific embodiments and their equivalents disclosed in the specification. For the translational rotation element, the two embodiments are four-bar mechanism and translational overturn mechanism, so the four-bar mechanism and translational overturn mechanism and their equivalents are all in the protection scope of the claim 3'.

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.

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