Research On The Judgment Of Inventive Step In The Application Of The Doctrine Of Equivalents

The doctrine of equivalents is one of the most common and important principles in the judicial determination of patent infringement.It is essentially a reasonable extension of the scope of protection of claims.It is considered that the scope of protection of claims does not only include the literal scope of protection,but also includes technical solutions in which one or several technical features are equivalent.In the current patent law of China and its implementation rules,the doctrine of equivalents is not clearly defined.In 2001,the Supreme People’s Court issued the "Several Provisions on the Application of Laws in the Trial of Patent Dispute Cases".For the first time,it officially proposed the understanding and application of the doctrine of equivalents in the determination of patent infringement,and gave four elements that met the principle of equivalence:"Three consistent" standard+association ease.The judgment of equivalent infringement is a difficult point and a dispute point in the practice of infringement judgment.This paper firstly expounds the basic connotation of the doctrine of equivalents,introduces the regulations and practical experience of countries in applying the doctrine of equivalents,and the applicable standards and judgment methods of the current doctrine of equivalents in China,which leads to the problems in the application of the doctrine of equivalents in judicial practice,such as easily to split the relationship between technical features,whether we need the specific exclusion rule or not,and inconsistent of the judgment standards of prior art defense.Secondly,it expounds the basic connotation of inventive step and its judgment methods,and discusses the connection between the doctrine of equivalents and inventive step,and provides a theoretical basis for the application of inventive step factor rule to judge the doctrine of equivalents.Finally,based on actual jurisprudence,the rules of inventive step judgment factors involving technical features,non-obviousness,and prior art defenses in the application of the doctrine of equivalents are proposed.It is recommended that overall principle be established in judicial interpretations,departmental regulations or decision-making guidelines and should be used throughout all steps of the judgment of equivalent,including understanding of technical solutions,division of technical characteristics,functional effects of means,and judgment of obviousness,for correcting application of the principle of equivalence in the process of infringement trial.Using teaching away rule to indicate whether the four elements of the equivalence principle is satisfied or not,so that all cases of specific exclusion can be realized by the judgment of the doctrine of equivalents itself.Taking into account the legal basis of the prior art defense principle and the operability of the judgment standard,it is proposed that the prior art defense should adopt the limited inventive step standard,and strictly follow "Three-step method".