Patent Infringement, "the Doctrine Of Equivalents" Applicable Restrictions

The propose of the research is to insist on the view of applying to solve the various confusion in applying at present when present The Doctrine of Equivalents (DOE) in China by analyzing dispute in applying of DOE; apply the research method of history analysis and compare synthetically, integrate with the case analysis and draw the conclusion: It is necessary to induct The Doctrine of Equivalents (DOE) to prevent the tortious people filching the benefit of the inventor and confirm whether the infringed people imitated and copied patent on purpose, it is international tidal current to apply DOE in the processing of patent infringement cognizance, and firstly it must ensure the protecting confine by explaining the claim with compromise explain method, the difference of different extent in patent creation also effect the demarcation of equivalent extension; it should apply the rule of comparing factor one by one rather than comparing the whole equivalent in comparison of equivalents, and needs to be confirmed by increasing the assistant means in the processing of patent infringement cognizance by using Triple Identity Test of Graver; contrast and analyze whether they are equivalent depend on the level of the common technicians in relative domain and it is scientific and reasonable to confirm equivalent time standard by infringement date; in judicial practice of equivalent cognizance, it may use the experiences in Japan for reference to solve the cognizance misunderstanding area of reality in the law and the technology; The superabundance designation that may be understood as a display unfair contract because of neglect and materially misunderstanding should be conditionally applied in current time. It can demur by using The Doctrine of Prosecution History Estoppel and prior art to the proposition of DOE. And The Doctrine of Prosecution History Estoppel is not estoppel absolutely but can be demurred by patent holder to prove the modification is independent of the patent; the demur in the prior art should not add the limit of public using freely, and confirm equivalent should not make sure by the quantity of technology scheme combination but grasping the rule of whether it is simple combination sticking out a mile and made after creating work; it should apply priority when the people who is accused of infringement present the demur in the prior art, and the court have no right to intervene him whether...