The Application Of The Equivalence Principle In Patent Infringement Lawsuit In China And Restrictions

The doctrine of equivalent has becoming an interesting subject. In the context of it, the judge presiding patent infringement lawsuit after comparing the alleged technical schemes and the technical schemes in claims of an effective patent, finds some different aspects between the two technical schemes on the surface, but the difference is replaceable techniques generally known by common technic personnel in relevant field. The alleged infringer make use of the replaceable techniques to substitute necessary technical characteristics in the independent claims of effective patent, and as result produce substantial the same function and effect as the patented technic. Then the judge can disregard the insubstantial differences and conclude that such behavior constitute infringement on patented invent.Apparently, the doctrine of equivalent can function as a more useful weapon and system to protect rights and interests of patentee, which promote the development of science and technology and economic. As result the doctrine of equivalent has been adopted by courts of mostly country in the world now. Although the patent law and its implement detailed rule of our country has not stipulate the doctrine yet, the doctrine of equivalent has been applied more and more in patent suit of our court. The doctrine has becoming one of the most fundamental and influential principle in patent infringement suits gradually.In practical application, however, the doctrine becomes a dilemma with advantages and limitations. And the reasonable application is said to be the"most challenging problem in patent infringement suit". In practical proceedings, because of difficulties in grasping the limitation of the doctrine's application, wrong inclination are easily be found. At the same time, the doctrine of equivalent may cause uncertainty to the whole patent system, thus make the public and competitor can not find the exact boundary of patent right. These effects will restraint research and investment plan and so make society pay for it.Naturally, we can reach a view as follows based on analysis above: in the protection of patents, the doctrine of equivalent has to be a balance point, whose essential point has to be balance the interests of patentee and interests of public. And only through accurate application of the doctrine the patentee's and the public's rights and interests can be protected effectively,...