Current Status of Patent Claim Quantity in China
The content of claims determines the patent scopes, and the patent technology can be divided to two dimensions: extent i.e. size of technology range and depth i.e. details of technology level. The number of total claim can be used to distinguish levels of protection and deployment of technology depth, and thus both technology range and level can be comprehensively protected through appropriate number of claim. However, the larger number of claim does not mean better. Even thought number of total claim is large, it cannot practically protect innovative technology if applicant randomly combines elements to make large numbers of claim with no deployment strategy.
According to index of patent-in-suit research report1, among 59,117 US granted patent in 2010, number of total claim and patent-in-suit rate are proportional(Table 1). The larger number of total claim revealed that applicant used numbers of claims to protect whole technology concepts and details, and thus the patent has powerful offensive in litigation.
However, according to article 93 of China 《Patent Arc》and policy of 《Guidelines for Patent Examination》, applicant has to pay claim fees for 150 CNY in respect of eleventh and each subsequent claim. Therefore, the number of total claim drops sharply when it over 10. There were 10%2 (about 200,000 patents in total) patents having only one claim (Figure 1) in those granted patents. Among those patents, 95% patents belong to China citizen applicants (Figure 2). Patent application which applied by China citizen applicants are obviously affected by legislation so that patent amount decreased apparently when the number of total claim is over 10. On the other hand, although greatest number of total claim located on 10 claims that showed it was somehow affected by legislation, foreign applicants had more deployment strategy to completely protect their scope of patent.
It is worth mentioning that patent CN203999251U (hereinafter 251’) has 409 claims which is greatest number of total claim applied by China citizen applicant in present China granted patents database, and the claim fee was reaching 60,000 CNY. However, the patent 251’ is a utility model patent which duration of the patent right is short and its patentability is easy to be challenged because it had not been substantive examination. Hence, unfortunately, the applicant paid lots fees and spent much time to apply and maintain the patent, but cannot gain the equivalent benefit from the patent right. As mentioned above, even if patent has large number of total claim, it still needs deployment strategy.
Author : PIIP Patent Specialist Candice Liao