[美国] 关于comprising在claim中意义 claim, comprising

colinmentor

however, despite use of "comprising" as the transition, a claim can be interpreted such that all of the elements of one type have a claimed characteristic, although the claim recites that a plurality of those elements have that characteristic-suggesting to the patent owner that some of those elements in an accused product may lack that characteristic yet still be within the claim.

以上判例来自：Texas Instruments, Inc. v. United States Int'l Trade Comm'n

对这段话不怎么理解。这是Landis中关于claim格式一段。


看完后以为：权利要求引用了一部分元素A1，限定了权利要求具有性质A，侵权产品采用了另外一部分元素A2。侵权产品并不因为采用A2而超出权利要求限定范围。也就是适用等同原则。

但是在看句子时候，有觉得字面直译过来挺别扭；请大家指点。

谢谢

lezhuxiu

不理解你要问的是什么问题...
如果在claim中使用了comprising,那么:
patent=A+B+C
product=A+B+C+D
那么这个产品侵权;如果:
patent=A+B+C
product=A+B+D
那么如果"D element"是characteristic-suggesting(联想) ,该产品也是侵权

colinmentor

这段话，读不懂；想请教是什么意思。谢谢

Bismarck

landis上有很详细的解释

jack.patent

comprising 是可加的，表示产品不限界定范围

seinaphone

patent claim (3rd edition, published by west group)一书对“comprising”在权利要求中的作用进行了如下阐述：

The term “comprising”

Use of the term “comprising” in a claim means that the claim may be read to include other elements than those delineated in the claims. “Comprising” is not a weasel word with which to abrogate claim limitations. In construing a claim containing the term “comprising,” each case must be considered in the light of its disclosure when the question of breadth of claims is involved.
The use of the term in a claim for a composition comprising a major proportion of one element and a minor proportion of another is proper where the presence of other materials in the composition is noncritical.
A claim to a process which “comprises” four named steps is supported by a process which includes the four steps although a fifth step is required to accomplish the desired result. Claims containing the broad statement that a process “comprises” certain steps may not be held to exclude the use of additional steps to those set out in the claims.
In Swain and Schussler v. Mallory, the term “comprising” was said not to exclude ingredients not specifically mentioned in a claim; and the term “comprising” was said to be equivalent to “including.”
Although the reference included an additional step of incorporating granules into a matrix of dried solids from the dehydrated granulating solution to form larger granules, such a step is not precluded by the wording of applicant's claims wherein he chose to use the word “comprising.”
In Ex parte Henderson, the Board allowed process claims, saying:
We do not believe that the term “comprising” renders the appealed claims either indefinite or “unduly broad,” assuming that the latter term is intended to be a deficiency under the second paragraph of 35 U.S.C.A. § 112. The mere possibility that a composition may “comprise,” besides its stated elements that are disclosed as being essential, other materials which could defeat the applicant's intention, does not necessarily make the description indefinite or extend it beyond the applicant's intention.
In Ex parte Schuppner, the examiner rejected the term “comprising” under 35 U.S.C.A. § 112 as too broad and indefinite since it did not exclude the presence of numerous substances not disclosed. The Board, in reversing the examiner, said that:
There is no prior art which necessitates restriction of the claims. The examiner also felt that the term “consisting essentially of” should be used. We see no need in the absence of pertinent art why the claims should be so restricted as it is obvious that a wide variety of materials may be thickened with the claimed composition and various inert materials may be added to the composition without destroying the same or materially affecting its function.
On the other hand, there are situations where the term “comprising” can be considered indefinite, as was the case in Ex parte Budnick, saying that:
Decision on claim 13 is not dependent on the definiteness or breadth of a single word. Viewing the claim as a whole, the nature of the composition is not suggested even in the preamble. The relative proportions of the two specified ingredients are not specified, and the open form of the claim (“comprising”) permits the inclusion of significant ingredients in major amounts. In sum, all these deficiencies lead to the conclusion that claim 13 does not specify appellant's invention with the particularity required by 35 U.S.C.A. § 112.