Research On The "Equivalence" Problem Based On Functional Claims In Patent Law

With the development of electronic and mechanical industries,more and more technical features can not be explained by the traditional technical claims of structural types.Functional features come into being in this context.For the first time in 2016,the Supreme Court of China gave a complete definition of functional features in Article 8,paragraph 1,of the Interpretation of Certain Issues Concerning the Application of the Law in Cases of Infringement of Patent Rights.And in the second paragraph,the author gives special provisions on the tort elements of functional features.The scope of protection of functional features in Article 18 of the Patent Infringement Decision Guide issued by the Beijing High Court in 2017 is given in more detail.However,one of these provisions has to pay attention to the word "equivalent." What is the relationship between this and the equivalence principle in Chinese patent law?The general equivalence principle is only used to determine the equivalent infringement,and the relevant provisions of functional claims not only emphasize the "equivalent" implementation method in the scope of protection,but also mention"equivalence" in the special provisions of its infringement determination.It is not difficult to find that the special provisions of the judgment of infringement of functional features are similar to those of existing equivalent principles,but they are not the same.How can these similarities,similarities and equivalents be distinguished and applied?What are the problems that will arise in practice and how will they be resolved?These are all issues worth studying.In view of this,this paper explores the "equivalence" of functional features.The full text is divided into four parts:The first part starts from the concept and definition of functional features,collects the different provisions on functional features in different periods of our country,points out the use of functional features and the identification claims in practice,and starts from the essence of functional features.List several special functional features that do not have functional features or do not have manual support.On this basis,starting from the scope of protection in the concept and the provisions of special infringement,the "equivalence" problem that exists in China's current functional claims is derived,that is,the scope of the "equivalent implementation method" provision in the scope of protection is inconsistent.Whether to distinguish between a literal infringement and an equivalent infringement and how to make an equivalent infringement judgment of functional claims(how to apply Article 8(2)of the Interpretation(2)).The second part summarizes the relevant provisions of the functional features in the patent laws of the United States,Japan,and Europe(including Germany and the United Kingdom)and the opinions in the typical judgments through the collection of a large amount of foreign data.Among them,the four countries,including the European Union,have provisions on the concept of functional features.The scope of protection and infringement provisions of the functional features of the United States are the most similar to those of China.They also involve a large number of concepts of "equivalence",while countries such as Japan and Europe,The scope of protection of functional features depends more on the judgment of ordinary technicians in the field.In the infringement part,there is no special provision.Only the general equivalent principle of the country is applied when the equivalent infringement is determined,and these equivalence principles are also different.The third part is a comparative analysis of the provisions and applications of functional features between China and other countries,with "equivalence" in terms of conditions of use,concepts,scope of protection and "equivalence" in infringement as secondary categories.Comparing the different regulations and practical experience of several countries under each heading,the reasons behind the rules are analyzed in the light of the different rules and the advantages and disadvantages,and then the reasons behind the rules are analyzed in the light of the National conditions of each country.The fourth part undertakes the third part,taking the National conditions and the problems existing in practice as the premise,combined with the analysis of the third part,gives its own views and suggestions,and believes that the functional claims of China should not be limited in the use conditions.At the same time,the scope of the rights protection used in the review and infringement should be unified.The scope prescribed in the use of functional claims to determine infringement,that is,the embodiment and its equivalent execution,should be balanced between the functional feature claims and the specification.Functional feature infringement should refer to the United States and distinguish between literal infringement and equivalent infringement,but the distinguishing conditions are slightly different.In a word,taking the nature of functional features as the starting point and destination,this paper emphasizes the functional features of generality and specialization,eliminates the doubts about the inconsistent scope of protection in the past,and clarifies the differences and applications between several "equivalence".For the Chinese patent applicants to use functional features to eliminate concerns,but also for the patent examiners and judicial officials in the application of functional features of the relevant regulations to clear the obstacles.