| With the rapid development of science and technology, more and moreenterprises and individuals begin to focus on the protection of intellectual property.Patent system is designed to give the righter comprehensive legal protection, which isa purpose of the designer. By the end of2012, China’s patented invention reached to1.111million. With rapid increasing of patent applications year by year, the number ofpatent infringement litigation is also soaring. In order to escape from legal actions andavoid being involved in patent infringement litigations, some enterprises adopt to omittechnology characteristics or change characteristics of patent technology scheme,which become the common ways of enterprises avoiding patented technology.In patent infringement litigation, the possible infringement is often accused ofconstituting the same infringement or equivalent infringement. If technical programget worse at effect or functional aspect after its technical characteristics beingchanged or omitted, rather than being optimized, nor can achieve essentially the samefunctions or achieve substantially the same effect, which is certainly not constitute thesame infringement and also do not accord with the requirement of equivalent principle.Then, does it constitute infringement? Some enterprises and individuals are using thisway trying to take advantage of the loopholes in the law, to avoid patent infringementlitigation. Can this kind of situation really bypass the laws and regulations of thepatent infringement? Can the principle of equivalent standards be applied to judge? On this issue different courts have different opinions and there is no uniform opinionat academia circles, which undoubtedly constitutes the great confusions and threatsfor the patentee. Well, facing the principle of comprehensive coverage, the principleof equivalent infringement, the principle of excess specified theory, how to identify itfor the Court? In the legislations and cases in some countries, what attitude do theyhave for this question? What can be learned from these legislations and cases? In thispaper, logical analysis, comparative method and empirical analysis are used to fullyexplore whether the behavior that omitting the technical features or changing thetechnical features to reduce effects and the functions of the technology programconstitute patent infringement and puts forward preliminary judging criteria.The paper is divided into four sections to discuss.In the first part, the paper firstly draw out the problem and to explore the conceptof inferior behavior from the contrast between patented technical features andtechnical features contained by products or methods which was accused of beinginfringement. And then the range and classification of the inferior behavior will begot.In the second part, the paper mainly narrative the legal application situation inour country for such cases and the scholars’ theory ideas, and briefly introducesseveral other countries’ attitude on this question.The third part analyzes relations between inferior behavior and the principle ofequivalent principle, the principle of donation, estoppel theory etc. Then it eventuallycome to the conclusion that one should apply the doctrine of equivalent to determinewhether changed inferior behavior infringes patent rights or not and apply theprinciple of full coverage to determine omitted inferior behavior does not constituteinfringement.The fourth part, based on the above analysis and combining the current law inour country, puts forward standards of judging inferior behaviors infringe patent rightsor not. The emphasis is establishing standards to judge inferior behavior asinfringement or not.The practical meaning of this paper is to fully explore whether the inferior behaviors constitute patent infringements and tries to put forward some criteria, whichcould provide a reference for the enterprises and the courts. However, due to mylimited level, there are many aspects not clear enough that can be discussed in-depth.Please point out its shortcomings. |
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