On The Principle Of Excess Specified In The Patent Infringement

Patent infringement judgment is always a difficulty in the judicial practice allover the world. In patent infringement, comparing the infringing product with theclaims of a granted patent is needed by patent infringement judgment. However, inmost cases, the infringing product is not completely identical to the technical solutionof the claims. Therefore, it is difficult to judge how much simulation conduces to theinfringement, which concerns not only the law equity but also the technical issues. InChina's patent infringement, there are more and more infringement cases using theprinciple of superfluity establishing. However, in patent field disputing the principleof superfluity establishing never stops. This thesis surveys the proposition andapplication of the principle of superfluity establishing in China, then analyzes therelationship between the principle of superfluity establishing and the principle ofequivalents, finally analyzes the effects of using the principle of superfluityestablishing on China's patent infringement and gives five suggestions about how toperfect the usage of the principle of superfluity establishing. This thesis proposes thatChina should not like sheep follow the US, Japan and Europe community. Also, thisthesis thinks that the principle of superfluity establishing should not be an individualprinciple in the patent infringement judgment. In conclusion, the principle ofsuperfluity establishing should be combined with the principle of equivalents to forman integral principle of equivalents, which can be used for facilitating the IPprotection in China.