Written by Xiao HAN (Ms.) and Haoyu ZHOU (Elliot)

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.

If you have any questions, please feel free to contact us at patent@chofn.cn or trademark@chofn.cn.

 Article_Contradictory Interpretations of Means-plus-function Claims in China.pdf