The Application Of Equivalent Principle To Determine The Drug Patent Infringement

Nowadays intellectual property has got more people’s eyes. Intellectual property strategyhas increasingly become the important factor for measuring a country’s comprehensivecompetitiveness. As an important part of intellectual property rights, the patent right is alsoone essential annulus of the national intellectual property strategy. Along with the rapiddevelopment of our country’s patent technology, a large number of patent technology not onlybrings economic benefit for the patentee, but also provide the social public advanced scienceand technology, which has greatly promoted the social development. However, on the otherhand, many people begin to infringe the patent property because of huge economic benefits.Now, patent infringement has become a big problem of intellectual property litigation, and thejudgement of the patent infringement has been always attached great importance by the bothparties in the patent litigation. Equivalent principle is an important principle of judging thepatent infringement. The rapid development of science and technology makes the infringerchange the tort policy. Simple infringement has changed into the most common equivalentinfringement and equivalent principle is important factor to determine whether an actconstitutes equivalent infringement. Drug patent infringement is especially complex butimportant part in the patent infringement. Drug products are related to the human bodyhealth and life safety.So taking more attention in drug patent infringement research is torespect the life. Because of the complexity of the drug itself, the judgment of drug patentinfringement is relatively more difficult to decide.This article selects the patent infringement case of the Aonuo (China) pharmaceuticalCo., Ltd. and Hubei noon pharmaceutical Stock co., Ltd, as the case. It is divided into fiveparts, and discusses the application of the equivalent principle in patent infringementjudgment.The first part introduces the basic situation of cases discussed in this article, includingthe introduction of the case, the results of the trial and the focal point of controversy.The second part introduces the basic theory of application of the equivalent principle inpatent infringement judgment. This section is divided into two pieces, including the right toclaim the right to demand an explanation and claim explanation relations with patent infringement determination. The former in addition to introduce the basic meaning of claimexplanation, also discussed the combination the claims of the enclosed claim with openclaims.The third part is the application of equivalent principle and the decision of the equivalenttechnical feature. This part summarizes the basic theory of equivalent principle, and mainlyfrom two aspects discusses the equivalent technical feature of decision rules. Determine theequivalent technical characteristics should follow two rules, namely “comprehensive technicalcharacteristic rules” and “means-function-effect” rules. For the “comprehensive technicalcharacteristic rules”, the development and the suitable way of the rule in the United States arereferred, and discusses the application of the rules for determining equivalent technicalcharacteristics in our country’s patent field.On the basis of the third part, the forth part discusses the technical characteristics indetermining drug patents field equivalent when should pay attention to the special issue.Combined with the reference case, this paper mainly discussed from the angle of combinationcompound preparations, drug dosage ratio of components, drug components ratio and otherfactors to assess the impact of equivalent technical characteristics. The claimed other factorsmainly include the morphology of the pharmaceutical preparations to assess the impact ofequivalent technical characteristics.The fifth part introduces the application of the equivalent principles from the side, whichis called principle of estoppel. This part mainly discussed from three aspects: what kind ofmodification and statements can lead to apply principle of estoppel, how the principle ofestoppel affects the application of the equivalent principle, and the application of the principleof estoppel in our country.