| Just like other intellectual property rights, the patent right is seeking for a profit balance between patent holders and the public. On one side, inventors'legal rights should be protected so the doctrine of equivalent was brought forth. On the other side, to the patent infringement, the judgment should be full of legal certainty, or the public cannot confirm that their behavior fall into the scope of patent protection so the prosecution history estoppel came out. The prosecution history estoppel was set up to give a limit to the doctrine of equivalent. However, the degree of restriction about the prosecution history estoppel to the doctrine of equivalent does not have a definite conclusion. There exist two absolutely different principles in both scholars and practitioners, the "Complete bar rule" and the "Flexible bar rule". When it comes to the restriction for the prosecution history estoppel to the doctrine of equivalent in the patent infringement cases, Chinese courts cannot make sure about which principle to adopt.This paper firstly introduces the Shen Qiheng. V.S. Shanghai ShengMao transportation facilities Co.Ltd case. Then this paper will illustrate the Supreme Judicial Court's opinion on the doctrine of estoppel in this case. Next, this paper will explain the doctrine of equivalent and the prosecution history estoppel. Then, the "Complete bar rule" and the "Flexible bar rule" will be explained. Moreover, the thesis will move on to the case-study which means that this thesis will explore which rule would be adopted when the Chinese courts face the patent infringement cases. Then, this paper will introduce the famous "Festo" case to illustrate how American judges deal with the patent infringement cases. Finally, the author will give his own opinions and suggestions of which rule should be adopted in today's China. And the author suggests that the two rules should be adopted based on different territories in today's China. |
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