Invention And Utility Model Patent Infringement Judgment Principles

The active patent law was put in force on April 1st, 1985 and it represented the establishment of the patent law systerm in China. The legislation and implement of patent law has played the vital role to encourage and protect the inventations, improve the devolopment of technology and technical creation and promote the all-around development of economy and society. One of the improtant function of the patent law is to protect the patent right and the key of protecting the patent right and executing the patent infringement is to judge the patent infringement which is not only a legal issue, but also covers all aspects of the field of technology and is also a technical question. The problem of judging the patent infringement is not only one of the controversial issue in the domain of patent theroy, but also one of the diffucult problems in the field of patent practice. At present, That the law in judging the patent infringement is imperfect cause that people's court and state administrative organs don't have the explicit rules to judge and deal with the patent infriengement according to the appliction of judgemental principle of patent infringement and furthermore induce that the justice of patent infringement is incosistent with the execution of it.This paper analyzes the judgemental principle of the infringement in the field of the invention and utility model patent thoroughly, explains the relation of judgemental principle between them in detail and put forward a new systerm of judgemental principle of patent infringement which is perfect, high logistic and inner-coordinated according to the relevent research of other countries.This paper is divided into four parts, with the main theme of each part as follow:The first part is the introduction of judgemental principle of the infringement in the field of the inventation and utility model patent, including its two basic questions, one is to confirm the protected domain and the comparision objects of of patent right and discriminate the technical rule of the comparision objects, the other is the catalogues and conception of judgemental principle of the infringement in the field of the inventation and utility model patent and the present situtation and problems of it in our country. The second part introduces the enactment of the judgemental principle of the infringement in the field of the inventation and utility model patent, enacts five principles containing doctrine of full-scale embrace, doctrine of equivalents, inferior infringement rule, prosecution history estoppel and doctrine of prior art counterplead and meanwhile point out the reasons of not having unnecessary appointing rule and publish contribution rule.The third part is the concrete application of judgemental principle of the infringement in the field of the inventation and utility model patent, analyses the five priciples one by one deeply and combines the theroy with practice to explain the application of the priciples through the actual cases.The fourth part reaches the conclusion and brings forward some suggestions that people's court should comply with the seven procedures according to the enactment of the five princiles in the second part when they judge the patent infringement and that provides the judgement of patent infringement with the rules to follow.