Application And Perfection Of Patent Equivalent Infringement Principle

The principle of judging the equivalent infringement has been generally recognized by all countries in the world,but there are still problems in how to establish an objective and uniform standard for the identification of equivalent infringement based on the technical characteristics of specific industries.The principle of equivalence originated in the United States and has been widely used in many countries such as Germany,the United States,and Japan.The equivalent tort theory in the United States establishes the binary standard of "function-method-effect" and "insubstantial difference",and adopts the comparison method of "all technical characteristics are equal".Japan has proposed five elements of the principle of equivalence: the non-essential part,the possibility of replacement,the ease of replacement,non-known technology and special causes.Germany adopted the theory of purpose interpretation and established the principle of equivalence,including "obvious equivalence" and "non-obvious equivalence".Through judicial interpretation,China has established the three elements of "means,functions,and effects" that are basically the same,and the subjective elements of "easy association",and established the principle of comparison of all technical characteristics.However,according to the current judicial interpretation and judicial precedents,the application of the judgment elements lacks uniform standards,and the courts have different ways of applying the judgment elements,and the judgment logic and order are different.This article summarizes the current application of the principle of equivalence in judicial practice through empirical analysis,and finds that although the elements are independent of each other in the judicial interpretation,they are actually interrelated in the application process.The lack of more specific regulations makes the equivalence In principle,each judgment element has vague and inconsistent standards when it is applied,and the problem of "easy association" to determine the existence of the judgment element name.Finally,this article puts forward perfect suggestions on the application of the principle of equivalence in current judicial practice,mainly including the introduction of binary judgment standards.In addition to the existing four elements,the overall judgment standard of "insubstantial differences" is added.On the other hand,For the specific refinement and clarification of the existing "easy association" requirements,it is recommended that the commercial value in the patent examination creative standards be taken as an important consideration factor,and the "easy association" requirements should be used as auxiliary judgments with basically the same means,combined consideration,Finally,it is recommended to distinguish the size of the equivalence range with patent creativity,and to differentiate and identify the equivalence range of the more innovative pioneering invention and the less creative combination,or even the roundabout invention.