Author: Yang Peiquan

Key words: utility model protection object; Method characteristics; The case.

Abstract: Utility model refers to the shape of the product, structure or its combination of the proposed new technical scheme suitable for practical, but in the actual application of patents, there will often appear to use the existing method characteristics of the technical characteristics of the limitation, therefore, there will often be examination report opinion saying that it do not conform to the object of utility model protection. In this paper, the object of utility model protection is analyzed and sorted out, and combined with the analysis of specific cases, the cases with method characteristics in the "object of utility model protection" are discussed, so as to provide enlightenment for the agents in the defense of the review opinions on the above issues.

I. Introduction

According to paragraph 3 of Article 2 of the Patent Law, "Utility model refers to a new technical solution proposed for the shape, structure or combination of a product that is suitable for practicality".

As for the judgment of the object of utility model protection, the Guidelines for Patent Examination 2010 provides specific judgment criteria.

The Guidelines for Patent Examination 2010 also specifically points out in the way of "what should be noted" : (1) the name of the known method can be used to define the shape and structure of the product in the claim, but the steps and process conditions of the method shall not be included; (2) If the claim includes both shape and structural features and the proposed improvement of the method itself, it does not belong to the object of utility model patent protection.

II. Discussion on Methodological Features in the Examination Guidelines in Combination with Cases

In the examination guide, it is clearly stated that the name of the known method can be used to limit the shape and construction of the product in the claim. However, the proposed improvement of the method itself must not occur. The name of the known method is understood by many agents, including examiners, as known methods such as welding, integrated injection molding, cementing, etc., and it is believed that the name of the above method conforms to the provisions of the review guide. In fact, the author believes that both the method name mentioned above and the specific known method can be used as the object of utility model protection.

Case Study:

The technical scheme of claim [1] of the case is as follows: 1. A UAV system, which is characterized by: a UAV and a mobile control terminal for wireless communication with the UAV;

It is used to receive the voice information of the controller and convert the voice information into flight instruction and send it to the UAV;

The UAV is used to receive the flight instruction and control the flight platform of the UAV to perform the corresponding flight action according to the flight instruction.

The above case is an actual case represented by the author. In fact, the invention of this case is to provide a UAV system, which has a mobile control terminal and a UAV. The mobile control terminal can collect the voice information of the controller, convert the voice information of the controller into flight instructions, and transmit it to the UAV through wireless transmission. This allows the drone to complete a series of movements.

However, the examiners noted in their examination report that: The technical problems solved in this application need to rely on the mobile control terminal including a language parsor, and the parameter parsing module in the language parsor receives the original information of the flight protocol, generates the flight instruction through the comparison of the protocol, and sends the flight instruction to the wireless transmission device and the text information conversion module of the UAV. It is used to convert the sound information into text information and convert it into the original information of the flight agreement and send it to the parameter analysis module, which obviously contains the improvement of the computer program itself, that is, the improvement of the technical scheme lies in the computer software, which essentially contains the improvement of the method itself, so it does not belong to the object of utility model protection stipulated in the third paragraph of Article 2 of the Patent Law.

The core content of the above examination report is as follows: the scheme required to be protected by the claim includes "a certain technical feature", and the solution to the technical problem to be solved by the application and the realization of the above scheme rely on computer software program or agreement, that is, it is a virtual function module or software unit formed based on software programming, and its essence is the application of computer software program or agreement, and computer software Procedure or agreement is a feature of method, and some even directly point out that the scheme is actually a control method. Therefore, the claim in this article involves the improvement of the method itself, which does not belong to the object of utility model protection stipulated in the third paragraph of Article 2 of the Patent Law.

In this regard, the author did not approve the opinions of the examiners, in fact, the examiners considered the existing methods used by mobile control terminals and unmanned aerial vehicles as improved methods. In this regard, the author found a large number of existing documents to support, and gave the following reply: the scheme of forming control software through voice recognition has a large number of mature products at present.

Specifically, according to the patent application no. 201310500587.8, the name is voice control method and device, and the technical scheme exclusively disclosed is: a voice control method, including:

The voice is sampled and transmitted to the set-top box;

The set-top box recognizes the sampled speech and converts it into text.

The set-top box makes semantic recognition of the transformed text and decomposes the text into three parts: control command, application name and parameter.

The set-top box checks whether the application is active based on the decomposed application name, controls the application status according to the control command, and sends parameters to the application for operation.

The set-top box recognizes the sampled speech and converts it into text, conducts semantic recognition on the transformed text, and decomposes the text into control commands. In this application, the language recognition is transformed into text, and the parameters of the transformed text are compared to form control commands. It is proved that the speech recognition technology in the utility model is a known method, but does not contain an improvement of the method itself, and the application does not contain an improvement of the method.

You can also refer to the patent application no. CN01124487.9. The technical scheme disclosed exclusively is: a voice control system, including:

A host used to receive a speech and produce a digital speech according to it, and output a speech parameter after a pre-speech processing of the digital speech; As well as

A peripheral device comprising:

A speech recognition unit is used to receive the speech parameters, perform a post-speech processing of the speech parameters, and then output a control command to control the peripheral device.

Among them, the host receives speech and converts it into digital speech, which is equivalent to the text parsing parameter in this application accepting language information and parsing it into text information. The speech recognition unit receives the speech parameter and performs a post-speech processing on the voice parameter to output a control command, which is equivalent to the parameter parsing module in this application generating flight command according to the protocol comparison. The specification in the prior art document also reveals a variety of examples of speech recognition generation control instructions, proving that the speech recognition technology in the utility model is a known method, but it shall not contain an improvement of the method itself, and the application does not contain an improvement of the method.

A number of patents have disclosed software methods for controlling based on voice. It can be seen that the software control method of the controller in [Claim 1] of this application belongs to the prior art. It is also pointed out on page 54 of the review guide that a known method can be used in the claims in the utility model, but it shall not contain an improvement of the method itself, and this application does not contain an improvement of the method.

Combined with the application documents of this case, the actual technical problem to be solved in claim [1] is that the mobile terminal with voice recognition can be applied to the UAV system to realize wireless connection with the UAV so as to control the UAV, and then realize the sound control of the UAV, simplify the control operation of the UAV, and increase the interest and convenience of UAV operation. Therefore, claim 11 of this application is essentially an improvement of the composition and connection of the hardware part, and does not involve an improvement of the software control method itself, that is, it is not an improvement of the software program (method) itself. Therefore, this application belongs to the object of utility model protection stipulated in the third paragraph of Article 2 of the Patent Law.

Through the above prior art documents, it is obvious that before the application date of this application, there have been a large number of existing language control methods. Therefore, the final examiner also accepted the author's opinion and authorized the case.

3. Conclusion

To sum up, the answer of the above object is to prove that the method used is prior art. That is to say, the utility model mainly protects the structural features, but the above structural features are limited by the existing method, and the required protection scheme does not include the improvement of the method itself, which belongs to the object of utility model protection stipulated in the third paragraph of Article 2 of the Patent Law.