Research On The Principle Of Superfluity

According to the provisions of "Interpretation of Supreme People’sCourt on the application of law concerning the trial of PatentInfringement Dispute Cases ", the people’s court should examine all thetechnical features recorded in the claim asserted by the rights holderwhen determining whether the alleged infringing technical solution fallswithin the scope of patent protection. Thereby, the judicial circlecompletely negates the application of superfluity principle. However, hasthe principle of superfluity really lost its significance of existence? Thisarticle attempts to begin with the controversy of the principle ofsuperfluity, by analyzing the controversy which is focused on theprinciple of superfluity, the current domestic and international patentprotection trend, the relationship between claim form, claim interpretationand the scope of patent protection, the analysis pointed out that thedoctrine of equivalents is not reasonable and sufficient enough to protectpatent right, and recognized the rationality and validity of the principle ofsuperfluity, and attempted to perfect the application of the principle ofsuperfluity. This article consists of three chapters.The first chapter is about the overview of principle of superfluity,elaborating the connotation, dispute and cases of the principle of superfluity. The first section describes the concept, legal basis and presentsituation of the principle of superfluity; the second section includes casesrelated to the principle of superfluity as well as the disagreement betweenthe two parties. The second chapter demonstrates the legitimacy andnecessity of the principle of superfluity by analyzing China’s currentpatent system.The second chapter consists of two sections. The first part of the firstsection describes the fact that our country’s patent writing suffers fromthe low level because of the patent application mechanism; the secondpart of the first section describes that the principle of superfluity alsoaccords with current international patent protection trend; the first part ofthe second section analyzes the situation that segregation of duties of thecourt and the patent office led to the separation between patent claimreview and patent claim interpretation, as well as the destruction of theconsistency of patent right system; the second part of the second sectionanalyzes the relationship among patent claim interpretation, patent reviewand the range of patent right protection; the third part of the secondsection pointed out that under the patent system, the doctrine ofequivalents cannot adequately protect patent right, therefore justify thenecessity of principle of superfluity, through the analysis of China’sclaims generation and interpretation mechanism.The third chapter mainly elaborated the improvement of the principle of superfluity in the existing system. The first section envisagedto incorporate the principle of superfluity into the equivalence principle,as a means of judging. The second section attempts to prepose theapplication of the principle of superfluity; the third section is mainlyabout the restrictions imposed on the application of the principle ofsuperfluity to keep the balance between patentee and social interest.