On The Doctrine Of Equivalents In Patent Infringement Action

DOE developed from the American case law was a principle in balancing the interests between the public and the patentee for two hundreds years from then on. Its basic meaning is that the scope of protection of patent rights, including not only the necessary technical characteristics in the affidavit of claim, but also the technical characteristics compared with the real equivalents, that is to say, even if the accused product or method from the literal claims perspective does not constitute infringement, while the product or method compared with claims is the same technology in essence, also constitutes infringement.Applying DOE to determine the patent infringement, first of all to explain the scope of patent protection of affidavit of claim, the compromise method of explaining between the doctrine of peripheral claiming principle and central claiming principle should be adopted. Secondly, the correct method of application is that comparing the necessary technical characteristics in the affidavit of claim with all technical characteristics of the infringement. When compared to persist in using accurate and consistent standards, at the aspect of corpus standards, general technical personnel of the technical areas should be adhered to. At the aspect of objective standards, triple identity test and association sticking out a mile should be persisted in. At the aspect of time standards, on the day infringed should be insisted on. At the aspect of scope standards, a wide scope on creative inventions, a narrow scope on meliorative inventions should be insisted on. At the same time, application of DOE in patent infringement action about several special inventions such as bad improved invention, circuitous invention and the non-originated chemical inventions, should be payed attention to, and DOE should be adopted.If DOE rigidly stickles to the literal means of claim, the patentee's interests will be detrimental to. Whereas the principle is applied widely, to some extent, the public interests will also be damaged. Therefore, the doctrine of Prosecution History Estoppel and Prior Art Defense to demur the proposition of DOE should be adopted from the point of view of intelligent property right benefits equilibrium mechanism. And the Doctrine of Prosecution History Estoppel is not estoppel absolutely but can be demurred by patent holder to prove the modification is independent of the patent. The demur in the prior art should not add the limit of public using freely, and confirm equivalent should not make sure by the quantity of technology scheme combination but grasping the rule of whether it is simple combination sticking out a mile and made after creating work. It should apply priority when the people who is accused of infringement present the demur in the prior art, and the court have no right to intervene whether present the request of patent revoking.Although DOE has being applied world-widely , the Supreme Court of China set some principled regulations in the form of judicial interpretation until 2001, and doesn't make detailed legal system.So uniform judicial explanations ought to be constituted, to make out entirely clear and reasonable provision, to found a serious of rules of being applied of DOE, and all those are aiming at reinforcing law forecast and facticity. Unite inquisition institution to national patent cases should be set up and standards of patent infringement cognizance of regional courts also should be unified. The reasonable steps must be followed by the judge during the process of making decision with the DOE.