The Judgment Of Equivalent Infringement Of Patent Realm

The initial taking shape of the patent system,patent is basically infringed by using patent directly,with the development of technology,there have been a variety of alternative technical features,they can obtain the same technical effect,if strictly according to the claims of the text of the statement,can not meet the protection of patent rights,which will hinder the enthusiasm of technological innovation,the emergence of equivalent infringement is inevitable.Equivalent infringement is a kind of infringement,but it have difference compare with the general infringement,first in the principle of liability,using of fault principle,the principle of fault presumption,the principle of no fault,having controversy in the theory.The establishment of equivalent infringement is to limit the replacement behavior of simple technical features,and to encourage innovation,while the object of the patent is intangible,in order to achieve the purpose of setting the equivalent infringement,no fault principle is more suitable for equivalent infringement.the harmful behavior of equal infringement,including substantive elements and form elements,the substantive elements refer to the technical features,in the general infringement does not exist.General infringement has the difference,the form of equivalent infringement is listed,if not appear in the list,it will not become the harmful behavior of infringement.In the patent protection process,it is necessary to measure the interests of the right holders and the public,a slight imbalance,will lead to obstacles to technological progress.The application of the equivalent infringement increases the scope of patent protection,while the judgment of equivalent infringement become more subjective.The patent is composed of technical solutions,technical solutions are composed of technical features,so technical features of the patent is the smallest unit,then the division of making technical features become the most important step in the equivalent infringement.Requiring the alleged infringing technical solution contains the same or similar technical features as all technical features recorded inthe claims,and the alleged infringing technical solution realizes basically the same functions and achieve basically the same results by basically the same means.Although it is clear that all technical features are the method for infringement,but as the law provides non-uniform,there are non-essential technical infringement,using the omission of non-essential technical features to achieve the same infringement.In the claims,the fewer the number of technical features,The wider the scope of protection,the same technical features have been expanded to protect the scope of patents,if the omission of unnecessary technical features,then the scope of patent protection is more expanded,and obviously unreasonable.the technical effect of a single technical feature or the technical effect of technical solutions as a whole can not directly get,the scope of protection of the technical effect of a single technical features is significantly less than the technical solution,according to the balance of interests and the state can not initiative to protect the interests of the patentee principle,should choose the small scope.The judgment of the equivalent infringement and the design of the patent may seem similar,but not because of the similarity,it is considered that the judgment of the equivalent infringement is the same as the creative There are two important differences: First,the creative judgment is often compare with the combination of two or more of the existing techniques,the second,the creative requirements of the content as a whole,and the equivalent infringement emphasize on a single technical features to compare.Not only strict on the same way to judge,even if the establishment of equivalent infringement,but also can prohibit by the rules of ban on backing out promise,notarized procedures,the defenses of prior art.Patent application process or invalid declaration process,the patent applicant or patentee's changes will eventually be announced,the final announcement is the final result,all the evidence of ban on backing out promise are saving by the State Intellectual Property Office,if necessary Must apply for access and copy,most people are not easy to do,but the relevant patent departments can be easily obtained,the court can take the initiative in the trial.The specification includes a number of technical methods and embodiments,but the right holders are not write them in the claims,in accordance with the rules of the donation,the technical solutions and examples in the claims are not protected,Which excludes the application of equivalent infringement,which is equivalent to donate to the society,then this rule limits the number of technical methods and examples that the right holder writes in the instructions,which would be a loss to society,so be careful to adapt to the donation rule.Selection of the defenses of prior art is somewhat complicated because there are equivalent spaces in the technical features,the existing technical features also have equivalent space,and the selection of noneffective or the defenses of prior art,the defenses of prior art is more convenient.