Research On The Application Of The Principle Of Donation In Patent Law

As one of the important principles in patent infringement judgment, the principle of donation has been embedded into a comprehensive and systematic theory in the United States.This principle has been formally introduced into China by the approval of the Interpretation of the Supreme People's Court on Several Issues concerning the Specific Application of Law to Trial of Patent Infringement Cases, to borrow experience in trial of patent infringement cases from developed countries,restrain the application of the doctrine of equivalents,and achieve the balance of interests between the patentees and the social public. With adherence to the guiding ideas mentioned above, the Interpretation of the Supreme People's Court on Several Issues concerning the Specific Application of Law to Trial of Patent Infringement Cases (II) came into effect on April 1, 2016, with a view to improving the certainty of scope of patent protection, and providing clear legal anticipation for the public. However, only basic concepts of the principle of donation are provided in China, and there is no provision concerning the rules, scope and restriction of the application thereof, which causes the conflicts in interpretation and application of such principle. Thus far, few researchers and scholars have focused on the theoretical study of the principle of donation in China, so no consistent theoretical knowledge of such has been reached. Some scholars even have proposed to abolish this principle. Therefore, by deeply analyzing the principle of donation in developed countries and considering the practical situations in China, the author proposes some constructive suggestions for the development of the principle of donation in patent.This thesis is divided into five apart, except for the introduction and conclusion.The first part is the introduction of development history of the principle of donation, in which the theoretical and practical foundations thereof are introduced and explained by interpretation the relations between patent claim and description. In the first place, the author clarifies the connotation of the principle of donation,and initiates discussions concerning the value of principle of donation in patent law. Secondly, the author gives elaboration on the relations between patent claim and description,and observes that the principle of donation is generated from the determination of boundary of patent right, restriction of patentees from expanding the scope of its right protection unlimitedly, and balance of interests between the patentees and the social public. Then, through the study of typical cases in developed country,the author reveals the conflicts in application of the principle of donation in cases trialed by regional courts and federal circuit courts,and analyzes the tortuous development of such principle, to conclude the application standard thereof.In the second part, the author represents discussions concerning the theoretical foundation of the principle of donation, and gives elaboration on the inevitability and advancement of such principle from perspectives of the principle of balance of interests, the principle of equity, and the principle of disclosure.The third part is the comparative analysis of the application of the principle of donation with the doctrine of equivalences and the doctrine of estoppels, with a view to explaining the significance of the application of the principle of donation from an internal perspective.In the fourth part, the author draws a summary on the restrictions and exceptions of the principle of donation in patent infringement trials by conducting a systematic study on the scope and standard of application of such principle.In the fifth part, the author summarizes the legislative provisions and judicial practices concerning the application of the principle of donation to patent infringement cases with examples of typical cases. In addition, the author, in comprehensive consideration of the actual situations in China, gives an argumentation on whether the principle of donation shall be applied or abolished, and proposes corresponding measures from aspects of ideology and design of specific system. Finally, the author draws a conclusion on the enlightenment learned from the application of the principle of donation.