On Patent Infringement Under The Doctrine Of Equivalents

With the economic speeding up, technology developing, the patent application become more and more frequent, and more patent infringement bother occur accordingly. When patent infringement pendente lite proceed, confirming the patent infringement exist or not is based on the infringed object belongs to the protected patent or not. Confirming the protected patent should be based on the which title was claimed and be formed by commentating the title claim, which can neither be divorced from title claim, nor only stickle to form of title claim. The Doctrine of Equivalents, one of the doctrines used when describe patent claim, expands the patent protection to the equal field, which is for maximal benefit between patent protection validity and patent scope specification,The doctrine of equivalents was put forward by USA court in Winans v. Adam case and now was applied in justice practice of all countries. In most case, the doctrine of equivalents is used to give the second opportunity for patentee to protect the rights of patentee, when it can not be directly protected by the description of patent claim, infringement under the doctrine of equivalents allows a patent owner to prove infringement, even when the claims are not literally infringement. The purpose behind the doctrine of equivalents is to prevent would-be infringers from avoiding liability simply by making minor changes to their device or process, which might not have been anticipated by the patent owner. If the changes are insubstantial, then the doctrine of equivalents can act as a mechanism for a court to find infringement nonetheless.Judge the patent infringement under the doctrine of equivalents from belowseveral launches:Firstly, generalize to point out the general theories of the doctrine of equivalents. As for the protection scope of the patent right there is various theories, in recent years these theories also moderates or integrates gradually, the value of the doctrine of equivalents is fair. The doctrine of equivalents moderate a clash of benefits between the patentee and the public. Judge for the characteristic of equivalents is core to apply for the doctrine of equivalents.Secondly, analyze the applicability of the doctrine of equivalents in the litigation about patent infringement, the applicability of the doctrine of equivalents do not be decided by subjective or objective intention of pirate. The judgment of patent infringement under the doctrine of equivalents should have two standards: corpus standard and objective standard. All the patent of contrivances all should enjoy equal scope of patent. The doctrine of prosecution history estoppel and the existing art plea provide opportunity for patent intruder to confine the right of the patentee. So using The Doctrine of equivalents, the doctrine of prosecution history estoppel and the existing art plea together in judge of patent intruding case, can provide necessary and moderate lawyer protection for patentee.Finally, point out the necessary of perfecting the doctrine of equivalents in the justice practice and bring forward perfection suggestions of four aspects. The first of which is to constitute uniform judicial explanations, to make out entirely clear and reasonable provision, to found a serious of rules of being applied of the doctrine of equivalents, and all those are aiming at reinforcing law forecast and facticity. The second of which is that the Patent Agency should put forward more rigorous request to patent proposer's right demands and the patent proposer must provide searches reports in order to work out rational explanation and limitation. The third of which is the utility patent ought to apply the doctrine of equivalents cautionally and do not expand the protection scope voluntarily. Lastly, set up unite inquisition institution to national patent cases and unify standards of patent infringement cognizance of regional courts.