Research On The Principle Of Superfluity Establishing In Patent Infringement Judgment

Since the principle of superfluity establishing has been applied in judicial practice, there is a problem which can not be avoided that whether or not applies the principle of superfluity establishing in the patent infringement judgment in China. This thesis researches on the principle of superfluity establishing and gives a conclusion after analyzing the coordination of the formation of patent claims and the interpretation of patent claims. There are four chapters in this thesis.Chapter one focuses on the analysis of the connotation of the principle of superfluity establishing. Chapter one is made of two sections, section one illustrates the concept of the principle of superfluity establishing and the non-essential technical features, and then introduces the views of applying rules for the principle of superfluity establishing. Section two introduces the application of the principle of superfluity establishing in judicial practice. In 1991 the Beijing Intermediate People's Court first established the principle of superfluity establishing in a case of patent infringement. June 18, 1998, the Supreme People's Court Clearly approved the principle of superfluity establishing in a reply, September 2001 Beijing Higher People's Court Clearly defined the application of the principle of superfluity establishing in a judicial interpretation. However, in August 2005,the Supreme People's Court disagreed to apply the principle of superfluity establishing rashly at the arraignment in a case of patent infringement.Chapter two describes the predicament of the principle of superfluity establishing. Section one is the dispute whether or not the principle of superfluity establishing should be applied in the judgment of Patent infringement, the views of support consider: patent claims writing is not only a legal issue, but also a technical issue, it is hard to avoid writing non-essential technical features into the independent claim, interpreting patent claims and defining the scope of patent right should be guided by the principle of fairness, the court should apply the principle of superfluity establishing to deal with the behavior of omitting the non-essential technical features in the patent infringement.The views of opposition consider: all of the technical features in patent claims should be considered as essential technical features, no matter whether it is important for technical scheme to realize the purpose of the invention. As long as products don't contain the non-essential technical features, the court should judge that the infringement is not established based on the principle of literal infringement. Section two introduces the dispute about applying rules for the principle of superfluity establishing. Section three analyses the predicament of the principle of superfluity establishing and points out the problem in the application of principle of superfluity establishing.Chapter three researches on the impacts of the formation of patent claims, the interpretation of patent claims, and the coordination of these two for determine the scope of patent right. The principle of superfluity establishing is the principle of patent claim interpretation and the expansionary interpretation of the patent claims in essence. The prospects of the principle of superfluity establishing depend on legitimacy of the expansive interpretation of patent claims and the expansion of the scope of patent right. Therefore, it is necessary to analyze the mechanism of defining patent right scope before furthering research on the principle of superfluity establishing.Chapter three is made of three sections, section one analyses the function and the formation mechanism of patent claim. The purpose of patent claim is define the rights, publicity rights, and it is the main basis for defining the scope of patent right. The formation mechanism of patent claim includes patent claim writing and patent examination by patent office, the restriction on the patent claim in the formation mechanism will effect the scope of the patent right.Section two describes the manner and the standard of the patent claim interpretation. Section three analyses the relation of the formation of patent claim and the standard of the patent claim interpretation and points out that the formation of patent claim and the standard of the patent claim interpretation should match to each other, on the condition of the coordination of these two, receive the same scope of protection for the same invention.Chapter four analyses the necessity of the principle of superfluity establishing, and gives the suggestions for its application. Chapter four is made of three sections. Section one analyzes the patent examination standard of the abstract patent claim and the functional patent claims in China, then points out that examination standard of the abstract patent claim is strict in China.Section two proposes that our country should use loose standard of patent claim interpretation. The principle of superfluity establishing is the expansionary interpretation for patent claim in essence, thus effectively corresponds with the formation mechanism of patent claim, and effectively dealt with the behavior of omitting the non-essential technical features in the patent infringement. Section three gives suggestion on improvement applying rules for the principle of superfluity establishing in China.