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Supreme court refuse doctrine of extra limitation- -you could find the judgment.

Time:2015-01-21   Click:
Reportedly, on 10 september 2005, the justice jiang zhipei of the supreme court of china, who takes charge of reviewing cases of intellectual property rights, said that in a recent case, the supreme court had expressly shown its opinion that the doctrine of extra limitation (“多余指定原则”)could not be accepted in the establishment of patent infringement in china.  as provided in art. 56, first paragraph of the chinese patent law, the meets and bounds of a patent right (invention or utility model) should be determined in accordance with the language of claim, by which the public at large can learn of what conduct would not violate a certain patent right when making a decision of business.  however, the doctrine of extra limitation allows for omitting a limitation recited in a claim to prove infringement or not so is contrary to the aforesaid function of notification of claims.  this doctrine has ever been employed in the early days of chinese patent system, grounds for which are that the experience of the patent agent of china at that time was very short and sometimes, an extra limitation was possibly be unexpectedly included in a claim, and therefore the right of the patentee would not be fairly protected only if that extra limitation has be omitted in claim construction.  however, this ground does not exist any more after twenty years of enactment of the chinese patent law and chinese patent agents have built up rich experience not only in patent prosecution but enforcement as of nowadays, so the doctrine of extra limitation should be not adopted in establishment of infringement any longer, either.  although china is not a country of common law, the judgment of the supreme court would be a guideline to the lower courts, i.e. acts as a precedent in an actual sense, so this case in effect announces the death of that outdated doctrine.  it is hoping that the judgment of the case referred to by the justice jiang could be published earlier.(you could find the judgment here:http://www.chinaiprlaw.cn/file/200509135721.html )