The Research On Some Issues Of The Determination Of Patent Infringement

Determining the infringement of the patent right is the core of the Patent Law. In practice, to determine an action to amount to an infringement of the patent right would refer to some complex provisions of law and technology, so how to determine an infringement of the patent right becomes an important problem in the lawsuit of patent infringement. Patent infringement can be divided into two types—direct infringement and indirect infringement, and its elements also differ accordingly. Only using the principle of fault liability can not provide effective protection for patents, different form of liability should be based on the application of the principle of different attribution. To determine the patent infringement that, first of all, is to determine the scope of patent protection. Patent claims plays an important role in determine the protection scope of patent, we should use the compromise principle to explain the claims. We also use the reference description, drawings, and other documents to finalize the scope of protection. Secondly, use the principles of determining infringement to compare the technical features of the object that be charged with the technical features of the patent claims records one by one. The principle of universal coverage is applicable to compare the technical features. If the allegedly infringing product or method have all the technical characteristics in claims, it is patent infringement. If not , we also need to compare whether there is equivalent between the two. If they are equivalent, it is still infringing. There are a lot of controversies on the application of the doctrine of unwanted designation, but its existence is sill necessary at present in China, it will help to strengthen the protection of patent rights. Finally, in the course of determining the patent infringement, the protection of the interests of the patentee can not be ignored as the protection of the legitimate interests of the accused and the public. Therefore, the alleged infringer can allege against the patentee with the defense or mitigation of their responsibility to the subject-matter, that is, subject to allegations of a defense. The defense reasons of infringement can be divided into general subject matter and the doctrine of history estoppel, the prior art. The doctrine of history estoppel which is both a defense reason and an interpretation rules of patent claims, is expressed as restrictions on the doctrine of equivalent. The prior art whether in the same infringement or equivalent infringement can apply to. After the steps above, we will then come to the conclusions of infringement.