Research On The Application Of The Equivalents Doctrine In Pharmaceutical Patent Infringement

The doctrine of equivalents, which is frequently used in the patent infringementcase, is an important but controversial principle, since it inevitably involves subjectivejudgment during its use, and that make the rights boundary fuzzy. Until now, there hasno unified opinion about its application standard. In the pharmaceutical patent cases,besides the problems of the doctrine itself, the complexity of the pharmaceuticaltechnology and the particularity of pharmaceutical patents will also disturb theapplication of the doctrine. Accordingly, we should do the research about how thedoctrine used in the pharmaceutical area, in order to give substantial advice to furtherrefine the existing equivalent theory, and finally improve the level of patent protectionin China.This paper first discuss the negative effect on the application of the doctrinecaused by the particularity of pharmaceutical patents, then analyze what adjustmentshall be made on the doctrine in order to eliminate these effects，and guarantee abetter development of pharmaceutical industry in our country. The full text is dividedinto three parts：preface, body part and epilogue. The body part consists of fourchapters.The first chapter explains what the pharmaceutical patent is at the beginning, andthen expounds the particularity of drug patents from the patent itself and the influenceof other factors these two parts. This chapter worked as a prelude to the following parts.The second chapter analyzes what potential impact the particularity may work onthe application of the doctrine of equivalents. We can find that the difficulty of theapplication in this area lies in three parts: The complexity of the technology makes the“function-way-result” test could not perfectly apply; Different matching of the drugwill change the entire efficacy that affect the scope of equivalents; Interest gamingand policy influence makes the application of doctrine difficult to handling.The third chapter following with the problem summarized by the second chapter,divided into three parts to discuss, they are the scope of the equivalent, the choice ofthe equivalent test and the limits of the doctrine’s application. Each part combinedwith the existing regulations and practice at home and abroad, specifically analyzesthe existing controversial opinion，then work to find what appropriate adjustments ofthe doctrine should be made in this field.The last chapter references with our existing provisions and the situation ofpharmaceutical industry, and then summarizes and put forward specific adjustmentmeasures which should be made to the doctrine of equivalents, in order to perfect theequivalent theory, and meet the needs of the related industries. The suggest is, we canadjust the doctrine from the following five aspects: Considering the essence of theinvention; Limit the doctrine’s application in numerical technology features; Usingthe known interchangeability test to remedy the defects of the function-way-result test;Improve the predictability of equivalent technology to the patentee; Extend theapplication of the prosecution history estoppel.