On Principle Of Superfluity Establishing Of Patent Infringement Determination

It has been more than 20 years since the implementation of patent law in china on June 1st, 1985, and a comparatively perfect patent protection system has been established. Many judicial experiences had proved that the core to keep balance between patent protection and public benefits protection lies in the determination of patent infringement, which is a difficult problem in judicial practice all over the world. It involves not only legal issues, but also technical issues. As a controversial but important principle, the principle of superfluity establishing is broadly used in the judgment of all levels courts in china nowadays. As a result, it is necessary for us to discuss the application reasons,conditions and restrictions of this principle, in order to direct our judicial practice in the field of determination of patent infringement.The determination of patent infringement using the principle of superfluity establishing faces two aspects of contradiction. One is the public benefits, the determination of patent infringement should based on the patent documents, which should be affirmatively, and the public have reason to believe what the document said is the substance contents of a certain patent application. As a result, we can not apply this principle arbitrarily without any restrictions, to conclude that the infringement exists; The other is the interest of patentee, the result of patentee's intellectual work, the patent right should be respect and protect by the sociality. Any illegal use should be corrected, and any people who want to use the patent should pay the bill, which is the specific reflection of fairness, the overlord regulations in Civil Law.According to existing laws, regulations and judicial practice, this paper uses the research methods of historical analysis, comparative analysis and case study analysis etc.Based on a case which involves this principle, this article surveys the application reason, conditions and restrictions of the principle, in order to achieve the equitable protection of patent right and social benefits by the regulation mentioned above.Specifically, this paper includes 4 parts:Part 1,brief introduction of zhoulin spectrum analyzer case, which is a typical case involves the earliest application of the principle of superfluity establishing, it consists of case details,controversial opinions and finally judgement,and the paper highlight the different opinions of some famous scholar in China;Part 2,history of the principle of superfluity establishing, uses the historical analysis,comparative analysis research methods, this part introduces the development course in china and abroad of this principle;Part 3,the application reason of the principle of superfluity establishing, it introduces the jurisprudence basis, the legal basis and the reality basis of the application of this principle, in the situation of current patent protection and legislation in China;Part 4,the application condition of the principle. As a main part of this article, in the vision of law equity, it introduces the way to restrict the application of the principle of superfluity establishing, in order to keep balance between the public interest and patentee benefits. It consists of form conditions, substance conditions and application exceptions.