Research On Equivalence Determination In Patent Infringement

Judgment for patent infringement is an important part of patent law,which maintains the effective operation of the whole patent system and protection of patent rights.When determining whether the alleged infringing constitutes a patent infringement,the most important step is to determine whether the alleged infringing object falls into the scope of protection of the claim,which is divided into literal patent infringement judgment and equivalent patent infringement judgment.With the vigorous development of patented technology,the literal infringement of completely imitating other people's patented products or copying other people's patented technology is rare.And it is common for the alleged inf-ringer to make a non-substantial transformation of the claim by means of substitution equivalent to the patent infringement phenomenon.Therefore,in order to make up for the deficiency of literal patent infringement judgment,the equivalence determination developed into an important principles of patent infringement judgment.The creation of equivalent determination originated in the United States,and American courts have determined the important position of equivalence determination in patent infringement through a series of jurisprudence in judicial practice.Subsequently,Japan,Germany and other countries in accordance with their own economic development situation,and constantly enrich and refine the equivalence determination of the applicable standards and restrictive conditions.Although China has not made clear legislative provisions on the equivalence determination,but China's patent law academic circles have already recognized the theory of equivalence determination,and the courts at all levels have applied equivalence determination to hear a large number of cases of infringement of patent rights disputes.The promulgation of judicial interpretation by the Supreme People's Court in 2001 determined the "three basic" model applicable to the equivalence determination,and unified the standard of equivalent trial to the judgment in practice.After the promulgation of judicial interpretation in 2001,China's equivalent patent infringement cases showed a significant upward trend,in order to balance the relationshipbetween social public interests and patent monopoly interests,to prevent the application of excessive expansion of the equivalence determination,2007 the Supreme People's Court put forward a strict grasp of the equivalent of the judgment of the applicable judicial policy,with the2009 " The principle of estoppel,"the principle of donation",is more strict in the application of the equivalence determination.The development of equivalence determination in our country is short.Although the theory of equivalence determination is gradually increasing in our country at present,it is mostly used for reference and application of the theory of equivalence between the United States,Germany,Japan and other countries.And there is a great controversy about some important problems in the process of applying the equivalence determination.Therefore,it is very important to study the application and restriction of equivalence determination,to examine the present situation of the development of equivalence determination in our country,to draw lessons from foreign advanced experience,and to perfect the application and restriction system of equivalence determination in our country.Starting from the origin of the equivalent judgment in patent infringement,this paper examines the emergence,development and application of the equivalent tort judgment in the major countries of the world.Secondly,it discusses and analyzes the scope of the application of equivalence judgment,the division and Comparison of technical features,the standards and methods,and the restriction conditions from the perspective of research status and case analysis at home and abroad,and studies the connotation and value of equivalent judgment,constitutive elements,concrete application steps and so on.On this basis,combined with the relevant provisions of the equivalent judgment application and limitation,as well as the judgment situation and quantity distribution of the equivalent tort cases in our country since 2001,this paper analyzes the application status of the judgment in our country's legislation and judicial practice,and then obtains the equivalent judgment that the relevant legal system exists in our country is not perfect,the specific application rules are vague and the applicable restriction conditions are not perfect.Finally,drawing on the applicable experience of foreign equivalent judgment,combined with the development level of China's patent system,this paper puts forward perfect suggestions and measures from the legislative level,judicial level and restrictive conditions to improve the application and restriction of the equivalent judgment in China.In the legislation to further standardize the way of interpretation of claims,clarify the "general technical personnel in this field" standard,the introduction of "creative judgment" evaluation concept,the establishment of a unified and efficient patent trial system in the administration of justice,improve the construction of intellectual property judges,the introduction of the "technical investigator" system;perfect therestrictive conditions of the equivalent judgment,incorporate the obvious simple combination into the existing technical defense principle,introduce the predictability rule to urge the patent applicant to seek clear patent protection boundary,and gradually transition the current donation principle to the degree of presumed donation.Through the above suggestions and measures,in order to make the equivalent judgment in China's patent infringement judgment to play the greatest effect.