The Study Of The Principle Of Superfluity Establishing

Patent infringement judgment is always a difficulty in the judicial practice all over the world.It concerns not only the law equity but also the technical issues.The principle of superfluity establishing comes from Germany.At our country's patent laws and regulations, none of this principle.In China's patent infringement,there are more and more infringement cases using the principle of superfluity establishing.However,in patent field disputing the principle of superfluity establishing never stops.In the practice of patent violation litigation,the implementation of the principle of superfluity establishing becomes the focus.There are a lot of discussions on it.The principle of superfluity establishing means that when interpreting an independent application for patent and establishing the scope of the patent,the courts shall exclude all of the evidently dispensable technical features from what already recorded in the independent application form for patent,and only the dispensable technical features are allowed to establish the scope of protection of the patent so as to protect effectively the legal right of the party involved in lawsuit.The Supreme Court in its arraignment of Dalian Renda new wall building materials plant sue Dalian Xinyi Building Materials limited company for patent infringement trial,the expression of the rash does not support the application of the principle. The "Patent Law Implementation Rules" Article 20 and Article 21,paragraph 2,also be explained.The Judgments will help unify people's awareness of the principles of superfluity establishing and guide judicatory practice.This text tries to have a help to the judicatory practice by making analytical of the typical case.The article is divided into five parts:the first part is the cause of action.The second part is on the case,The third part is the broad focus of the dispute.Part IV is the differences and views.Part V is the conclusion of the study.In this case the main focus of two controversies:whether we should apply the principles and how to apply it.The writer elaborates and analysis the different viewpoints of the legal educational world and the judicatory practice.By the analytical argument to two above problems,the writer thinks applied the principle would unbalance the right between the patentee and the public,and it will also cause jurisdiction to invade administrative right.The principle must be eliminated,otherwise,our patent system can not develop favourably.