The Study On The Application Of The Doctrine Of Prosecution History Estoppel

The existence of the doctrine of prosecution history estoppel restricts the function of the doctrine of equivalents, which reflects the balance between the interests of the public and the interests of the patent holder. The concept of prosecution history estoppel is comparatively mature in the common law system; however, this concept is still in the phase of theoretical discussion in China.First, regarding to this doctrine, this thesis elaborates the fundamental concept, the theoretical source and the circumstances of application.Second, this thesis examines the theoretical problems while the courts apply this doctrine, such as whether this doctrine is a counterplea or a way of interpreting the patent, how to balance between the rule of elasticity and the rule of complete bar, and whether this doctrine may be applied in the case of infringement of appearance design, etc. While examining the above-mentioned problems, the writer borrows some ideas from a few case laws from common law.Third, with an intention to better the application of this doctrine, the writer makes some proposals to perform some revolutions in the area of legislation, court system, and the IP department of the government.