On The Principle Of Patent Infringement

The implement of the Patent Law emblematizes the establishment of the patent system of our country. It is a very important issue for the implement of the Patent system to cognizance that the patent right was trenched. The standard to cognizance that the patent right was trenched is directly connected to the balance of the interest both for the patentee and the public. Since the Patent Law was implemented, there are ten thousands patent cases in the whole country. But for many years, there is not a normal document by which patent pirate can be judged. Beijing high court published a document called "Advice to Cognizance the Patent Right was Trenched"(trying out) which make a great help to cognizance that the patent was trenched. There are many good principles and methods which can help judging the patent is trenched or not in the practice in this document. We know, the patent case is professional and technical, and judging whether the patent right is trenched is not only concerned the law problem but also the technical problem. So the content in this document also arouses dispute in the practice. Concerning this document, this article will analyze and discuss the principles which is used to cognizance the patent is trenched.This article is divided five parts apart from the preface and the result.The first part is telling the legal basis of patent pirate and the confirmation of the area where the patent right is protected. First, the area where the patent right is protected is analyzed in this part, then, several problems which is meeted with in interpreting the patent right is emphasized in the legal practice. This part also tells the rule and the method which is judged if the invent and the utility model right is trenched in the Patent Law.The second part is telling the omnidirectional coverage principle. This principle is basical and normal. It needs that the pirate technology and the patent technology is equal. This principle includes literal pirate, the pirate's technical character equal to the patent technical character, the pirate's technical character is in the patent character and the number of the pirate character is more than the number of the patent.The third part is telling equal principle. In the society, patent pirate is not the simple copy, the accused often make little but not material change on their products in order to avoidpirate. In this case, the equal principle is available. The equal principle is that there are some differences between the characters of the pirate and the patent characters, but the differences are not essential and material. The pirate characters and the patent characters are the same in the whole, and also have the same function and the same result. So the patent prate can be judged. This part is also telling the equal principle theory, the necessity and utility of the equal principle.The forth part is telling the banding on backing out promise principle. In the legal practice, when the equal principle is used, the patent obligee and the accused are often opposite. In order to balance the benefit of the obligee and the public, the banding on backing out promise principle and the supernumerary appointment principle should be used. The banding on backing out promise principle is that during the patent right offering and mantaining progress, the patent applicant and the patent abligee changed the area of the patent right can be protected in order to meet the need of the Patent Law. And the change should be recorded in the documents of the patent administrative body. So, in the case, the change will be limited the obligee.The fifth part is telling the supernumerary appointment principle. This principle is that during the pirate judgement, when the claim of right is interpreted and the area of the patent right is determined, the non-necessary characters can be omitted. The area of the patent right is determined only by the necessary characters. When this principle is used, the area of the patent right can be enlarged. It will benefit the obligee more. To this principle, there are two opinions which is opposite in studying fields and these two opinions will discussed in this article.