An Research On Equivalent Infringement In Judicial Practice

Equivalent infringement, along with the rapid progress of intellectual property, has become not only one of the most complex forms of infringement, thus making the doctrine of equivalent infringement an integral part of the principles of infringement judgment. Very few empirical researches on the doctrine of equivalent infringement, however, have been conducted in judicial practices in China. The empirical analysis in this thesis devotes itself to demonstrating the applicability of the doctrine of equivalent infringement, which serves as new and innovative approach.Based on the classification of the cases of equivalent infringement, the empirical research in this thesis investigates such variables as time, location, the level of trial court, patentee, types of the patent, the degree of technical features. The study shows that some problems arise in the process of applying the doctrine into the judicial practices, including the lack of specific standards for judgment equivalent, a greater concentration of power in judges, the failure of the proper distinction of types of patens, as well as the absence of the proper ways to determine the equivalent infringement.Given the problems in the judicial practices, the thesis attempts to put forward the following suggestions:1) correctly identify the technical features;2) properly sort out the determining methods of equivalent infringement. The identification of the creativity of a patent shall use for reference the suggestions of three-person groups, the judge, the professional technical personnel, and the experts related.3) place restrictions on the application of the doctrine of equivalent infringement;4) appropriately discriminate the situations of its application;5) the number of technical characteristics of a patent shall be used as one of standards applicable to equivalent infringement.