On Judgment Principles Of The Equivalent Infringements

The doctrine of equivalents has been widely recognized by countries all over the world as a judgment principle in patent infringement,but how to develop the objective standards for identifying the infringement by combining the features of specific industry technology still remains a problem to be solved appropriately.Originating in America,the Doctrine of Equivalents has been widely used in America,Japan and countries in Europe.In America,the theory of infringement under the doctrine of equivalents and the relevant judgment methods were gradually established in the process of juridical practice.The standard of "function-way-result" identity test was established in the Mur Phy case,and the "Hilton" case established the comparison method of "the theory of infringement under the doctrine of equivalents is applicable to all technical features".The limits for the doctrine of equivalents include: prosecution history estoppel,principle of donation,prior art plea,and the reverse doctrine of equivalents.The "ball spline bearing case" in Japan affirmed the doctrine of equivalents,and put forward the five key components of the doctrine: non-substantial part,possibility of replacement,easiness of replacement,technology not publicly known and special reason(estoppel).In Germany,the doctrine of equivalents adopts purpose interpreting theory,and the doctrine of equivalents including active components and passive components was established in the "Formstein" case.Our country has established the objective and subjective standards and the rule of comparing each technical feature for the doctrine of equivalents in our judicial interpretation,but compared with the relevant systems in other countries,we have not yet built up a complete system for the doctrine of equivalents.The judging mode for patent infringement under the doctrine of equivalents includes three parts,i.e.,comparison object for the judgment,method for the judgment,and the time standard for the judgment.For the aspect of comparison object,it is necessary for our country to introduce the reverse doctrine of equivalents through legislation.The judgment methods include methods such as "function-way-result" three-step test,non-substantial difference test,and obviousness test.In the aspect of time standard,the judgment may vary in different countries.For our country's doctrine of equivalents: we shall adopt the date on which the infringement happens as time standard;in the aspect of protection scope,we shall adopt different scope components respectively for original invention and modified invention;and the doctrine of equivalents shall not be applicable to infringement of appearance design.In the aspect of standard system of patent,we shall build up unified and highly efficient judicial system,strict procedure of administrative review and approval,and legal and professional accrediting bodies.In the aspect of exclusion system,we shall adopt the principles such as prosecution history estoppel,defense of publicly known technology and subjective exclusion rules.The technological fields related to the doctrine of equivalents mainly include mechanical invention,electrical invention,chemical invention and invention with computer program.When identifying the infringement under the doctrine of equivalents for mechanical invention,examination shall focus on the aspects such as the position of constituent parts and components and the connection in machinery.For the electrical field,requirements for functional rights are applied more frequently.When judging the nature of electrical invention,examination shall focus on circuit configuration,connection and its function as well as the working condition of the circuit.For chemical inventions,the claims of defining product by using method shall be established completely,the review rule of "necessity" shall also be established;when identifying the infringement under the doctrine of equivalents,method of complete limiting shall be adopted for the features of method and technology,so as to establish the application rule for the infringement under the doctrine of equivalents.For invention with computer program,adopt the method of functional limitation to write,and adopt the functional limitation and current technology as the basis of infringement identifying.Among various types of innovative inventions,the higher extent of pioneering of a pioneering invention will entail the wider protection scope for the patentee.The laws of our country have sets out a very wide protection scope of equivalents for pioneering invention,the examination for which shall be performed by the market and society.At present,there is no official legislation for identifying the infringement of composite invention in our country,so stricter standard may be adopted for determining protection scope of equivalents.When identifying "obviousness",we can refer to the four key elements of "Graham Test Standard" established by the courts of United States.Selective invention: different principles shall be applied according to different cases when identifying the infringement of composition invention with open claim.For the invention of altering key elements,judgment shall be made on the basis of the basic judgment method of three-elements "function-way-result",and the judgment of ordinary technician in the area.When applying the doctrine of equivalents,attention shall be paid to the standard from the expert witness represented by the ordinary technician in the area.As patent litigations involve complicated and professional technical problems,it is necessary to rely on expert witness system to clarify and explain relevant professional questions.Relevant standard for selecting expert witness shall be adopted when identifying the infringement under the doctrine of equivalents,because,as regards to ordinary technician in the industry,the world "ordinary" may have different meaning for different technical areas.When identifying infringement under the doctrine of equivalents,ordinary technician shall also comply with relevant standard.The purpose is to ultimately achieve balance in protecting the rights of intellectual property and the creasing sophistication of the judgment standards for applying the doctrine of equivalents in judicial activities.