The Principle Of Superfluity Establishing In Patent Infringement Judgment

The Principle of Superfluity Establishing for infringement judging is the most controversial stands, and the essence of the controversy is whether the principle of superfluity establishing can realize the even protection of the interest of the patentee and the public or not. On one hand, the principle of superfluity establishing shall be in accordance with the purpose of patent legislation, protecting patentee’s legal advantage and encouraging inventions and creations; on the other hand, the principle of superfluity establishing have enlarged the protection domain of the originally determined patent right, making the law doubtful and has harmed the interests of the public. In that way, in the patent infringement determination, shall we abandon the principle of superfluity establishing?This essay starts off with the concept of the principle of superfluity establishing at the beginning, discusses its three theoretical origins that is GENERAL INVENTIVE CONCEPT from German, ESSENCE OF AN INVENTION from UK and DOCTRINE OF EQUAVALENTS from US and makes a comparison between the principle of superfluity establishing and the doctrine of equivalents. And then it presents the first circumstances of the appliance of the principle of superfluity establishing in the case of Zhoulin frequency spectrum instrument and figures out the conversion of attitude for its appliance in judicial departments in our country these years. After that, it elaborates the basic viewpoints of the principle of superfluity establishing of the academic world and evaluates MERCY. When discussing on whether the principle of superfluity establishing shall be abandoned in the patent infringement determination in our country or not, I consider that in the appliances of the principle of superfluity establishing, there exists two major obstacles:①There is a conflict amongst the principle of superfluity establishing, Article59of the Patent Law of PRC and the claim interpretation, precisely the superfluity establishing theories are not in conformity with the basic principles of ’the protection domain of inventions or patent right for utility models shall be in accordance with the content of the claims’ as set in the Patent Law and have abandoned the electric principle in the claim interpretation;②Court has run the power over the patent administration office. Court has not power of reviewing the patent claims or enlarging the protection domain of patent right and conducts as the determine subject of indispensable and dispensable technical features.In the end, this essay has analyzed on the advantages and disadvantages of the principle of superfluity establishing. I consider that the principle of superfluity establishing cling to pursue justice in individual cases, one-sidedly emphasize on the interests of the patentee other than the public’s and have challenged the validity of patent right, misguided court in chasing for the truth of affairs, harmed public’s interests and interfered the creativity in science and technology, going against the trend of the development of patent agent industry and modern patent policy. Therefore, the essay draws a conclusion:in the patent infringement determination, the appliance of the principle of superfluity establishing shall be abandoned and replaced by the doctrine of equivalents.