Research On Equivalent Infringement Of Patent

In the context of globalization, although our country has become amanufacturing powerhouse, still cannot become a powerful nation. China remains itsunfavorable position as low value-added, high energy consumption and high pollutionin the global industrial chain. The patents have become the most powerful bargainingchips. As for the core objectives of the intellectual property lawis the protection ofintellectual property rights, and the promotion of innovation and invention.Intellectual property cases can be complex, specialized and large features standard,also intellectual property cases are difficult parts among all cases of variouscategories. More important part in application of intellectualproperty law is to keepthe reasonable balance between the patentee and the public interest of the community.I trigger the discussion of the article with The Ohno (China) Pharmaceutical Co., Ltd.VS HuBei Wushi Pharmaceutical Co.,Ltd., trial of the first, second instances and thereview of the Supreme Court,in order to analyze the legal and social issues thatproduced by the process ofthe application of the Rationality of intellectual propertyprotection, DOE, and Prosecution History Estoppels, and try to comb through an analysis of typical cases to determine problems existing in the intellectual propertydispute.First of all, this article will introduce the theoretical origin of the Rationality ofintellectual property protection, patent protection, interpretation and scope.Rationality of patent protection is the legislative basis of patent law, also is thefoundation which the patentee can obtain hiseconomic interests of patent and socialbenefits. Only by explicitly figure out why the patentee can be protected, the scope ofpatent protection and the reasonable explanation of the scope of patent protection, canthe law practice better in the process.This section describes the early foreign theoriesof intellectual property Foundation, meanwhile explains the justice of IPR(intellectual property protection).Secondly, with the logic of patent protection explanation, based on the fixedlanguage limited premise, patent protection, or the doctrine of equivalents, happens.The second part of the context introduces the source of the doctrine of equivalents aswell as the solution and development aimed the doctrine of equivalents of America,which is world’s largest protector of intellectual property rights; sorts China’s usageof the doctrine of the equivalents meanwhile, and analysis Hubei WushiPharmaceutical Co., Ltd; Wang Junshe case’s first and second instance’s problems, including the standard of the doctrine of equivalents; admitted evidence and so on.Context points out the shortage of China’s use of standards of the doctrine ofequivalents, at the same time, proposes the solution to deal with the improvement ofthe doctrine of equivalents by example illustration and demonstration.Moreover, the doctrine of equivalents expands intellectual property rightsprotection, in some case violets public benefit. In order to limit the doctrine ofequivalents, law adopts the policy of “forbidden regret”. In this part, the contextdiscusses the development of America’s utility of “forbidden regret” policy,concentrate on the introduction of the game theory between forbidden regret policyand the doctrine of equivalents, and analysis the situation of Hubei WushiPharmaceutical Co.,.LTD and Wang Junshe case. The author also raises the problemand solution of forbidden regret policy by sorting identification and method of elasticelimination policy.All in all, after deliberately considering multiple aspects including the balance ofinterests, the applicability of the law and so on, I(author) decided to compare andanalyze “doctrine of equivalents” with “Principle of ban on turning back”, to prove“Patent infringement of interests balance”. Suitable patent law can not only protectthe legal right of patentee, but also preserve public interest, further promote scientific progress of the whole nation. Law is the primary distribution of interest, andintellectual property needs Omni bearing protection from legislation, enforce of thelaw, administration of justice, to legal supervision. I (author) wish to contribute ideasand exert efforts for the patent law in nowadays China by thinking wisely on my own.Above all is the main content of this paper. In view of the limited level of theauthor, some wrong and perhaps inappropriate view can hardly be avoided, thereforethe author warmly welcomes all kind of criticism.