Reconstruction Of The Patent Equivalence Doctrine In The Dualistic Structure Of Justice And Administration

The modern patent system is a system built around claims.The equivalence doctrine expands the claims scope based on the literal meaning.The equivalence doctrine,which is widely applied in China's justice procedure,is usually positioned as the balance between the patentee and the public interest,providing fair protection for the patentee.This kind of position does not make the equivalence doctrine fully functed,nor can it safeguard China's national interests under the international patent system.China should reconstruct the equivalence doctrine according to China's national interests.The patent examination is an important part of the patent system,although the equivalence doctrine is only implemented in the justice procedure,but the administration department's understanding and implementation of specific Patent Law provisions also has a profound impact on the equivalence doctrine.The confliction can affects the efficiency of the administration department,and then affects the China patent system's efficiency.What makes the problem more serious is that the implementation of equivalence doctrine in the justice procedure itself also faces many dilemma.What's the proper role the China patent system should play at the present stage is the premise for solving the problems that have been mentioned.The article focuses this topic and is divided into five chapters.China's equivalence doctrine is greatly influenced by the United States.Chapter I focuses on the emergence and development of the principle of equivalence doctrine in China and the United States.It firstly gives a brief introduction of equivalence doctrine in the United States,then discusses how the US antitrust law affects or shapes the modern equivalence doctrine.In principle,equivalence doctrine in the United States is shrinking,and the focus of the equivalence doctrine has shifted from providing substantial fair protection to maintaining a dynamic market competition mechanism.Chapter I also briefly reviews the emergence and development of the Chinese equivalence doctrine,focusing on the statement that the equivalence doctrine in China is still deeply influenced by the value of providing substantial fair protection to the patentee,and is clearly inclined towards the interests of the patentee.Claims are from administrative procedure.Patent examiner's working style and the conflictions between the administrative procedure and the justice procedure about specific clauses or standards all have impacts on the claims,which in turn affects the application of equivalence doctrine.Chapter II discusses the relationship between the verification of priority right,allowability of amendments,the examination of A22,A26 and the application of equivalence doctrine.Chapter II demonstrates that the implementation of equivalence doctrine makes the conflictions between Chinese justice procedure and administrative procedure more obvious and reduces the efficiency of the Chinese patent system.Chapter III discusses the dilemma of implementing the equivalence doctrine in the justice procedure.Specifically,there is a contradiction between the elements of the equivalence doctrine,which is inconsistent with the China current economic&technology status.The equivalence doctrine itself has the ability of strengthening patent rights.What makes this issue more serious is that,under the current frame of Chinese patent litigation,equivalent infringement is used as a reason for judgment rather than a claim for litigation,which frees the patentee from the evidence obligation.In this way,the patentee get unreasonable or unfair benefits from litigation procedure.This strengthens the claims further and hinders fair competition.This is extremely detrimental to China.The implementation of equivalence doctrine has deepened the friction between the administration procedure and the justice procedure.From the appearance,the frictions are born from the different interpretation of specific rules,but in essence,the frictions root in the different values cherished by the administration procedure and the justice procedure separately.Chapter IV discusses the proper role the current China patent should paly and the equivalence doctrine,and proposes that current China patent system should be taken as a channel that is used to introduce technology from the developed countries to China.For this purpose,the equivalence doctrine should be guided by the value of national interests and be oriented to technological development.The balance of the interests under the equivalence doctrine of China has to take three kinds of interests into consideration: the developed countries' interests in China(especially the United States),the interests of the patentee,and the cultivation and maintenance of China's market dynamic competition mechanism.The function of the equivalence doctrine requires the cooperation of the administration procedure and the justice procedure,and the conflictions or frictions between procedures should be resolved through a system mechanism.The main task of Chapter V is to propose solutions:the reconstruction of the justice procedure focuses on the reconstruction of the elements of the equivalence doctrine itself,and the reconstruction of the litigation procedure.Administration procedure can provides assistance to the reconstruction of the justice reconstruction,which in specific is that keeping high standards of obviousness and obeying the requirements about the description strictly.Therefore,the technologies flooded into China from the developed countries through the patent system can be kept as the public knowledge more.Finally legislation should strengthen the review or check of the "Guidelines for Patent Examination",which in essence has no inspection at all now,and establish justice authority at the system level.