Doctrine Of Equivalents Infringement

The theory of doctrine of equivalent(DOE) had been formed and brought up in the course of the enforcement and fullness of the patent law. Though this theory has been run in the history of over one hundred and fifty years from the root of this theory till now, it is still deeper thoughtful, which does not form a consistent concept. The theoretical system of doctrine of equivalent has been consensus among the academics and judges in our country, which the infringement of trivial changing is able to be committed powerfully by applying doctrine of equivalents that has been compensated helpfully by prosecution history estoppels and pleading for informed technology. However, some details of them were still in dispute. This article has been hoped to perfect our country' s theory of doctrine of equivalent and give some helpful advices for our country judicial practice by attempting to analysis and study from the source,the concept, the fundamental,the application of doctrine of equivalent and the relative to the prosecution history estoppels and pleading for informed technology.This article has been divided into six parts.Part one is the preface. This part introduces some disagreements of doctrine of equivalent in the academics and judicial practice and puts forward the meaning and destination of this article.Part two is the summary of doctrine of equivalent. This part has been divided into three parts, which are the source of DOE, the concept of DOE and the fundamental of DOE. In the part of the source of DOE, this article has been presented from the famous Winas v. Den mead and put forward the historical pace and some issues appeared in its development. Modem theory of DOE had been established in Winas v. Den mead. American Supreme Court established the central role in the liability of infringement in patent protection and expressed a serial of key issues ha the application of DOE. In the part of the concept of DOE, this article introduces and analyzes the concept of DOE constructed in Graver. In the part of the fundamental of DOE, this article explores the jurisprudence concealed behind the theory of DOE through presenting English theory of creative essence and German theory of creative subject. Part three is the application of DOE. This part has been divided into two parts, which are the study of the protection scope of the patent and the application of DOE. In the part of the protection scope of the patent, the requirement of the patent and the constitution and function of the specification have been presented in this article, also, the doctrine of explanation requirement of the patent has been analyzed and given the argument of this article. In the application of DOE, the application requirements, the field, the standard, the method of DOE have been represented and analyzed carefully.Part four is the restriction of DOE to the prosecution history estoppels. This part has been divided into three parts, which are the meaning of the prosecution history estoppels, the application of the prosecution history estoppels and the relationship of the prosecution history estoppels with DOE. While the meaning of the prosecution history estoppels has been represented, this article explores the jurisprudence of the prosecution history estoppels from broad to narrow. Also, this article represented the application of the prosecution history estoppels from the requirements and the methods of the application. Finally the relationship of the prosecution history estoppels with DOE has been represented from theory and practice.Part five is the restriction of pleading for informed technology with DOE. This part has been divided into three parts, which are the meaning and the application of pleading for informed technology and the relationship of pleading for informed technology. The doctrine of pleading for informed technology explains the meaning of itself from philosophical angle. Also, the application of the requirements and methods has been discussed in the article. Finally, this article represented the relationship of pleading for informed technology with DOE from their characteristics.Part six is the conclusion. In this part, this article looks forward the attitude of DOE toward Patent Act, summarizes the lawful fundamental of DOE and offers perfected advises of DOE from its history.