Research On The Principle Of Superfluity Establishing In Judgement Of Patent Infringement

The principle of superfluity establishing is a very controversial issue to judge of patent infringement in China. Whether the principle should apply and how to apply, some scholars have different views, some courts also has a different verdict. Similar problems have happened in other countries. The whole article is divided into five parts:The first part - the basic structure of the principle of superfluity establishing. Focused on how to understand the content of the principle of superfluity establishing,the formational conditions and the limitations and so on. This part from three questions to start with a correct understanding of the principle of superfluity establishing, namely, to confirm that an interpretative manner of the independent patent claims and the scope of patent protection, to understand that"the essential technical features"and"the non-essential technical features", besides, to compare that the alleged and infringed matter whether falls into the scope of patent protection, thus to determine whether forms patent infringement. On this basis, it discusses the formational conditions of the principle of superfluity establishing, and to analyse that the necessary limitations to of that.The second part - the principle of superfluity establishing and the related theories. From the application of the main principle in determine patent infringement, to summary and analysis their mutual relationships: The principle of superfluity establishing bases on the principle of comprehensive coverage; The principle of estoppel and the principle of prior art defense balances the principle of superfluity establishing; The principle of superfluity establishing is equivalent to enlarge the doetrine of equivalent.The third part - the principle of superfluity establishing and the patent claims. The principle of superfluity establishing apples that from stand out the invention theme's the essential technical features, to protect the patentees'the substantive patent in chinese judicial practice. The judicial practice in other countries have a similar approach virtually, it is benefitful for understanding the many parts of the principle of superfluity establishing to understand and recall the similar theories in the other countries: Focuses on the theory of"total invention of the idea"in Germany, the theory of"the invention the essence"in Britain, relationship with the theory of"the whole equivalent"in the US, have relationships with the principle of superfluity establishing, thus come to a conclusion that it is necessary to abolish the traditional theory and bring the principle of modern equivalent. The fourth part - The principle of superfluity establishing is applied in our country. The principle of superfluity establishing from the budding period, the standard period, the controversy period, to develope into a new stage, combining with the most important of cases during all the comprehensive judicial practice, is brought forward to refer and use carefully by Supreme Court. Namely, under normal circumstances, can not draw on the principle of superfluity establishing, but in very exceptional circumstances, could be refer and use it carefully.The fifth part– The principle of superfluity establishing have a future trends in our country. Outlining the reasons that product the principle of superfluity establishing, the paper focuses on the scrape that apply to the principle of superfluity establishing, and brings forward replacing the modern doctrine of equivalents and the reference meaning: It is a general trend to the principle of superfluity establishing is abandoned and gradually replaced by the modern doctrine of equivalents, combining with the principle of the development in our country, referencing to the foreign legislation. Therefore, it is suggested that combines the principle of the whole development combines with the principle of all the technical features, to play to the maximum efficiency of the principle of equivalent.