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Preface

The significance of claims cannot be emphasized too much in patent infringement litigation. As the former Chief Judge of the U.S. Court of Appeals for the Federal Circuit in 1990 stated, the name of the game is the claim. 1 In current U.S. and Chinese patent law, claims define the scope of patent rights. Interpreting claims to determine the scope of a patent is the first and crucial step in patent infringement. In the United States, where claim interpretation is a separate step in litigation, many infringement cases are settled once claim interpretation is decided by a court.
Because of the tremendous significance of the claims, they are typically drafted with special care to define the subject matter of patent protection definitely and clearly.2 However, the meaning of claim terms is still disputed from time to time in litigation. Litigators attempt to convince the court to adopt an interpretation of the terms in favor of their own clients. The literal scope defined by clarifying the meaning of the claim terms, together with the scope defined by the application of the doctrine of equivalents, determines the scope of patent protection resulting from claim interpretation in patent infringement litigation. 3
The United States has a long history emphasizing the role of the patent system in promoting technological innovation and economic growth. Similarly, China has been working on a transition from a manufacture-based economy to an innovation-based economy, and published the Outline of National Intellectual Property Strategy, which emphasizes the significance of patents in making this transition. To promote patent and innovation policy, patent claims should be interpreted to maintain a fine balance between two competing interests: (1) giving incentives to further innovations for inventors and (2) securing legal certainty for the public.4
This study is a comparative study of claim interpretation in the United States and China with a focus on the function of the rules. Because the U.S. patent law and Chinese patent law have very different conceptual frameworks and U.S. and Chinese courts define some rules for claim interpretation differently, it is easy to conclude the protection scope resulting from claim interpretation is very different between these two countries. However, these differences may be artificial and the rules may function similarly to lead to a similar scope of protection. The U.S. and Chines law defines a few of rules of claim interpretation in very similar expressions. However, those rules do not always function in the same way. Therefore, this study addresses the question whether the rules of claim interpretation function similarly or differently in the United States and China.
In order to answer this question, this study examines information from various sources. This research focuses on different legal materials in the U.S. section and Chinese section, because the two legal systems operate differently. To examine the rules in the United States, this research mainly focuses on cases and statutes, while using literature including treatise, law review and journal articles, and books as a secondary reference. In contrast, to examine the rules in China, this research examines a variety of sources, including cases, statutes, judicial interpretations, policy documents and transcripts while using literature as a secondary reference.
Similar to the United States, cases and statues are still a focus for understanding claim interpretation in China. But in addition to cases and statutes, there is a unique source of law in China. This source of law is called Judicial Interpretation, which provides some significant rules in claim interpretation5. The instructions from the higher levels become important guidelines for judges in adjudicating cases. When a new judicial interpretation is issued, a representative from the Supreme Peoples Court of China will be interviewed by the media and will give an official explanation to the media about the background and purpose of the new rules. The interview transcript is published by the Supreme Peoples Courts website and newspaper.
Since 2008, the Supreme Peoples Court of China has held an annual Intellectual Property Judicial Conference, which is attended by Chinese judges nationwide. The conference enables judges to discuss the cutting-edge issues in intellectual property cases and resolve conflicting views. The transcripts of the major presentations are published in the China Intellectual Property Protection Yearbook. Both the interview transcripts and conference transcripts are viewed by judges and attorneys not only as aids to understand the policy but also as instructions on how to implement the law. The Supreme Peoples Court and other patent related governmental institutions also periodically issue policy documents. Those policy documents do not provide instructions for adjudication, but explain the general policy trend.
Based on the cases, statutes and other related materials, this study explains how the U.S. and Chinese claim interpretation rules function to determine the scope of patent protection and how these rules reflect patent policy. Contrary to the common view in the Western world that China is reluctant to protect patent rights,6 Chinese patent claim interpretation rules function very similarly to those in the United States. This study will discuss Chinese rules, which are adopted from U.S., as well as rules which look different but function in the same way as U.S. rules, thus resulting in the same protection scope.
Moreover, Chinese claim interpretation has gone through an evolutionary process, which is similar to the U.S. patent law history. In the late 1990s, the U.S. courts started to give more weight to the public notice function of patent claims, and legal certainty with the protection scope resulting from claim interpretation.7 Following the U.S. trend, Chinese courts have also moved in the same direction to emphasize legal certainty.