Patent Infringement In The Doctrine Of Equivalents,

The doctrine of equivalents has gradually developed to be an important doctrine in determining the infringement of the parent along with the consummation of the patent system and the unification of the patent juridical practice. With the impulse and the influence of the developed countries in the west, it has been a powerful influenced and public believed doctrine. On the analysis of its development and juridical practice, the dissertation of its reasonability in the theoretical and realistic aspects. the comparison of its concrete constitutive elements in other countries ,the concrete constitutive elements of the doctrine of equivalents in our country will be forwarded in this article. At the same time, on the distinguish of the connection with the other doctrines in determining the infringement of the parent, the author hope that some beneficial advice will be provided in consummation of the doctrine of equivalents in our country.The title of this article is "On the doctrine of equivalents in determining the infringement of the patent". The article has four parts . It is as follows:Part One: the generality of the doctrine of equivalents. At first the conception of the doctrine of equivalents is introduced, and then its origin is discussed. Finally the recent juridical practices of the doctrine of equivalents in the United States, Japan and Germany are presented. Thus the research of the doctrine of equivalents has historical and realistic outline.Part Two: the reasonability of the doctrine of equivalents. This part starts with the theoretical source of the doctrine of equivalents. The reasons of the choice of the patent system and the balance of the value between the patentee and the public are analyzed in this part. The author considers that the doctrine of equivalentshas abundant theoretical foundation, at the same time, the immanent requirement of the patent system and the balance of the value between the patentee and the public are the dominating causes.Part Three: the constitutive elements of the doctrine of equivalents. In this part, the concrete constitutive elements of the doctrine of equivalents in the United States and Japan are introduced. By comparison between these two countries' concrete constitutive elements of the doctrine of equivalents, the sameness and the difference between these two countries are found. Seeing about the concrete constitutive elements of the doctrine of equivalents in the United States and Japan, the author sets forth the concrete constitutive elements in our countries: (1) the rule of all the indispensable elements; (2) the criterion in determining equivalents; (3) the time in determining equivalents; (4) the restrictive qualification of the doctrine of equivalents.Part Four: the other doctrines in determining the infringement of the parent and the doctrine of the equivalents. On the basis of explanation of the literal overlap, superabundance elements, file wrapper estoppel and known technology defense, it is necessary to distinguish the application of the doctrine of equivalents between the other doctrines of determination of patent infringement. All these will help us to grasp the application of the doctrine of the equivalents in the patent juridical practice in our country.What is more to make clear that this article is just related to invent patent and utility model patent, not to design patent.