4.7.11 An independent claim shall state the essential technical features necessary for the solution of the technical problem
Article 20 paragraph 2 of the Rules for the Implementation of the Patent Law stipulates the following: “The independent claim shall outline the technical solution of an invention or utility model and state the essential technical features necessary for the solution of the technical problem.” According to this provision, it is only necessary to consider whether the independent claim lacks the essential technical features. If an independent claim is declared invalid or abandoned, or other claims dependent on the independent claim become new independent claims, then these provisions shall also be complied with.
Regarding the determination of the lack of essential technical features and its relationship with the requirement that the claims be supported by the description, in a retrial of an administrative dispute over the invalidation of an invention patent, Elecon Asia SA v. Patent Reexamination Board,161 the Supreme People’s Court held that, in determining whether an independent claim lacks essential technical features, the key is whether the independent claim has recited the essential technical features for solving the technical problem – that is, whether or not there are essential technical features. As to whether the essential technical features are adequately generalized and whether they can be supported by the description, such an examination shall be made separately, in accordance with Article 26 paragraph 4 of the Patent Law.