Research On Principles Of Determining The Infringement Of The Patent Of Invention And Utility Model

It is because of that patent involves not only legal problems but also technological problems, and the science and technology is developing continuously, so patent infringement's judge is a generally accepted hard nut to crack and can never stay around a mode for fix up. Along with the developing of our country's economy, especially entering into WTO in 2001 , the patent cases increases significantly, among them, the great majority are the patent infringement cases. There is no nationwide uniform judicial regulation connecting the judge of patent infringement in China.Therefore the judge of patent infringement has theoretical and practical significances."Invention" in the Patent Law means any new technical solution relating to a product, a process or improvement thereof. "Utility model" in the Patent Law means any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use. "Design" in the Patent Law means any new design of the shape, pattern, color, or their combination, of a product, which creates an aesthetic feeling and is fit for industrial application. It is thus clear that,"Design"only involves the new design which creates an aesthetic feeling and is fit for industrial application, not involves the new technical solution, owing to this, this thesis only involves"Invention"and"Utility model".This thesis mainly discuss two basic aspects which are the principles of the judge of patent infringement and the reasons of no infringement. There are four chapters in this thesis.The first chapter induces the differences between the patent infringement and the common civil tort.The second chapter involves the all covering principle-the method applied in judging the literal infringement and the doctrine of equivalent, then involves what we should do about this problem through comparing our country's practice with the developed countries'.The third chapter involves the doctrine of prosecution history estoppels.The fourth chapter involves the refute to the patent infringement. At the end of the thesis the author deals with the summarization of the thesis. This chapter presents some advices on the progress of the patent infringement determination in China.In this thesis the author summaries the knowledge that there is no difference about patent infringement, deals with the new problems in practice, analyses and discuses the questionable things, then gives some useful proposals.