On The Doctrine Of Equivalents In Patent Infringement

With attending the WTO and putting forward scientific outlook ondevelopment, our country is creative to technology to value increasingly. In thecircumstances, the increment of the patent application measures is very quickly,at the same time. the patent infringement dispute also increases quickly, in patentinfringement judge, Doctrine of equivalent is a very important judgmentprinciple. Doctrine of equivalent is beginning in the United States and has beenthe history of 200 years in the west, but at our country, Although developmentspeed very quickly, Doctrine of equivalent can not keep up with the effectivedemand in theories and practicing. This article intends to review the historyorigin of the principle with the analysis of the latest development in abroad, jointogether our country of actual. At the same time, on the distinguish of theconnection with the other doctrines in determining the infiingement of theparent, The author hope that some beneficial advice will be provided inconsummation of the doctrine of equivalents in our country.This article is divided into three parts: the preface, text, conclusion.The title of this article is "on the doctrine of equivalents in determining theinfringement of the patent", the text has four parts, It is as follows:The first part: the generality of doctrine of equivalent. It is divided into theconcept of the principle with apply the scope, the history of the principle,theories foundation of the principle. First, the recent juridical practices of thedoctrine of equivalents in the United States, Japan and German arepresented. Second, civil law and intellectual property fight is the basis ofdoctrine of equivalent. The author considers that the doctrine of equivalent is thebalance of the value between the patentee and the public.The second part: application of doctrine of equivalent. It is divided intoapplication with latest development in abroad and in the localapplication. Studying abroad can discover, improve, perfect own shortage, thispart is the point of the article. The author disoasses the abroad first especially theapplication of the United States with latest development. Doctrine of equivalenthas been powerful influenced by fair principle of civil law. All this will help us to grasp application of doctrine of equivalent in the patent juridical practice inour country. For the application the our country, the part was discussed fromcondition of application, standard of judgment, boundary of time and scope.The third part: the other doctrines in determining the infringement of theparent and the doctrine of equivalent. It is necessary to distinguish theapplication of the doctrine of equivalents between the other doctrines ofdetermination of patent infringement. The more important other doctrines is thedoctrine of prosecution history estoppel and the existing art plea. Using thedoctrine of equivalent and the other doctrines together in judge of patentintruding case, can provide necessary and moderate lawyer protection forpatentee.The fourth part: improvement and administration of the doctrine ofequivalent in legislation and practice. It introduces the present situation aboutlegislation and administration about the doctrine of equivalent, and gives severalpieces of advices to improve our the doctrine of equivalent system on base ofresearch in previous contents.