On Doctrine Of Equivalent In Patent Infringement

The fundamental goal of the patent system is to protect the patentee's lawful rights and interests, to encourage invention-creation,and based on which to promote the development and innovation of science and technology through making public the scheme of patented technology. The most efficient way to encourage the inventors to disclose his invention is to establish a system under which the inventors can achieve the economic benefits as the rewards for the invention publicity. However, various patent infringements hinder the realization of this goal, especially the infringement under the doctrine of equivalents.The doctrine of equivalents was established in America about two hundred years ago. Under the influence of America, many developed countries, such as England, Germany and Japan have adopted the doctrine of equivalents in the patent infringement action. The aim of using Doctrine of equivalent is to escape liability though changing a little technology that is not essential. At present, the infringement that some one reappear all elements of the claim in his products is really rare. Most of the infringers would like to make some changes to some elements of the claim. So, most forms of the infringement is indirect and concealment. All of these lead to the useless of the literal infringement in the most infringement. Only the equivalents infringement can protect the patentee's patent right thoughtfully. The application of the Doctrine of Equivalents will lead to the uncertainness of the range of the patent scope. This paper based on the doctrine of equivalents development review the classic example of judicial practice and empirical analysis, the doctrine of equivalents connotation and the applicable condition, the scope and standards applicable conditions and makes some discussions. In order for the development of infringement of equivalent criteria and provide some reasonable Suggestions.This article is a detailed introduction and analysis on the application and restriction of the doctrine of equivalents. This article is divided into three parts: the preface, the text, the conclusion. The text has five parts, it is as follows:Firstly, it introduces the concept of the Doctrine of Equivalents. Introduces the Doctrine of Equivalents of historical development, and introduce the countries around the world's attitude about the Doctrine of Equivalents. The development of the Doctrine of Equivalents is the classic by had court cases of rich rise gradually, some cases for the development of equivalent principle laid solid foundation. This chapter will develop into the origin, wandering and contemporary three phases, and combined with the case, and the corresponding to different stages in the content and the changes are discussed.Chapter two is a introduction of the Doctrine of Equivalents in Patent Infringement. It clarifies the patent claim scope and the patent protection scope and the Doctrine of Equivalents play an important role in explanation rights requirements. The theory of limit analysis and center around the balance of the advantages and disadvantages of the limited, and from the two theories of dispute and the theory of compromise derivatives. Emphasizes the principle of equal rights in the interpretation of the important role, and the requirements for patent infringement of significance.Chapter three is the point of the article. Analyze the applicability and the constitutive elements of the doctrine of equivalents in the litigation about patent infringement, such as the"insubstantiality discrepancy"and"function-way-result"identity test,"invention as a whole"and"element by element"test, etc. For our country's application at present, From the Doctrine of Equivalents applicable conditions, the judgment standard, two kinds of different theories, time limits several aspects discussed. Another, the expansion of the Doctrine of Equivalents—our peculiar redundant designated principle, discussed its existence rationality in our current patent writing level is not high circumstances, the author thinks not cancel the designated principle is more, but should be used with caution.Chapter four. This chapter is on the foundation of the front article, combine the legal precedent to discuss"the prohibition reneges principle"and"the free common knowledge technology principle"which was regarded as the restriction of the doctrine of equivalent to expect to achieve the balance of the patent holder and public's benefit.This rule means that in the procedure of examining and approving, revoking and repealing, if the patentee limits or surrenders partly protection of the claims by way of stating in written form or amending the files, in order to affirm the novelty and creativity of his Patent, and obtains the Patent because of this reason, then, he is Prohibited from extending a claim limitation under the Doctrine of Equivalents to recapture the subject matter surrendered during prosecution of the application. Circumstances of applying prosecution history estoppels includes prosecution histories estoppels by amendment and prosecution history estoppels by argument. This principle refers to that in an action of patent infringement, in the condition of the accused infringing product being equivalent to the patent scheme described in the claims, if the defendant argues and provides proof which prove that the accused product is equivalent to prior art, then the defendant did not infringe the patent rights of the plaintiff. The key point for arguing by reason of prior art in the action of patent infringement is to distinguish relationship among the patent technology, the prior art and the accused infringing technology. If the accused infringing technology approaches to the patent technology, then it should be ruled that the argument of free prior art established, equivalent infringement is untenable.Lastly, the domestic situation of legislation and justice relating to the doctrine of equivalents is presented, and some suggestions are made to perfect the application of the doctrine of equivalents in the future in China. Put forward the following Suggestions: should formulate unified patent infringement, can judge rules in unity, authoritative judicial interpretation or case, best can be put in the patent law, In the court of final appeal for patent infringement, the effect of the uniform too, establish patent or intellectual property litigation, For patent infringement and technology is closely related to the case, through various technical training, technical background is from the legal talents to improve the judge professional technical ability.