Research On The Determination Of Patent Infringement

The core right of patent is"the right of prohibition". If somebody exploits a patent without the authorization of the patentee, that is the patent infringement. Determining the infringement of the patent right is the core of the patent law. In practice, to determine an action to amount to an infringement of the patent right would refer to some complex provisions of law and technology, so how to determine an infringement of the patent right becomes a big problem in a lawsuit of patent infringement. My thesis is based on the process of how to determine the infringement of the patent right which was concluded by the Beijing Higher People's Court in the judicial interpretation of"The opinion to some problem in determine an infringement of the patent right (try out)"in 2001,in my thesis, I have described my opinion to how to determine an infringement of the patent right for an invention and utility model.The opening chapter gives a general overview of the infringement of the patent right, the formal elements is the first step to institute legal proceedings, and the lawsuit proceeding is to resolve whether the substantive elements is established. This chapter also lists the actions which is not deemed as an infringement of the patent right and the manifestation of which is deemed as.The second chapter mostly expound the scope of protection in patent right, The core of the proceeding in determine an infringement of the patent right is to judge whether the action of infringer within the scope of protection in patent right, if it does, it amount to an infringement, if it doesn't, the infringement is not established. This chapter changed the examination of the infringement of the patent right into three small questions, from the purpose and the interpretation of the patent claim, the scope of claim, also combine the practice of the occident then get the conclusion of how to ascertain the scope of claims. In this chapter, the author suggests that in our country the claim should adopt peripheral drafting and take this suggestion in statute. Also , the law should prescribe that the People's Court should supposed the claim has adopted the peripheral drafting in the lawsuit of the infringement dispute, if the skilled man in the art read the specification and then comprehend that the claim does not write in peripheral drafting, in this case, we can adopt equivalent doctrine in justice condition. In the author's mind, this provision attach great importance to unify the proceeding of the infringement of the patent right, and it can fundamentally eradicate the boot of"unnecessary appointing rule", at the same time also for equivalent doctrine suitably to delimit the explicit boundary.The third chapter elaborated how to delimit the technology characteristic in the practice and pointed out regardless of by what way division technology characteristic, it should not get the result that some definition condition in the claim was ignored.The fourth chapter also is the key point of this thesis, it elaborated the literal infringement and the equivalent infringement, and from imitation person'angle to inspect them how to avoid infringement, corrected the traditional viewpoint to think "changed the poor invention " was amount to equivalent infringement, and combine the practice of the USA ,the Germany, and the Japan in the equivalent infringement theory, then suggested that in our country if we adopt the peripheral drafting and take this suggestion in statute, so the judge could suitably equate the equivalent infringement well when in trial case process, also the judge can strictly define the equating scope, in the author'mind, the "function/Way/effect "criterion, the"non- substantive change " criterion, the "obviousness "criterion which was established in the American judicature practice was possible to use in our country.The fifth chapter expounded emphatically the prosecution history estoppels principle, enumerated two of the most important legal precedents in the American judicature practice ,the author thought that which was contained in the theory was so good to us ,and basically it had clearly explain the disbelieve to this theory which appear in the practice.The sixth chapter explained the Prior art counterplead doctrine, this doctrine which was took as one of the limit principles just like the prosecution history estoppels principle can be used in the equivalent infringement and the literal infringement both. It is produced according to the basic principle of the patent system, and extremely important contradicting right which enjoys by the defendant.