An Analysis On Whether Inferior Invented Technology Constitutes A Patent Infringement

With the rapid development of science and technology, patent applications are increased year by year, and the number of patent infringement litigation is also soaring. The same infringement and equivalent infringement constitute patent infringement. Infringement by copying the patent technology completely has been decreased so far. In order to seek interests, Enterprises often adopt some other relatively hidden measures in an effort to escape the legal sanction. The inferior behavior is one of those.The paper is divided into four sections to discuss.In the first part, the paper focuses on the discussion of basic theories for the inferior behavior. The term for the inferior invention technology has not come to an agreement. People argue on its definition and classification.Therefore, the paper will form a relatively proper definition based on the former theories and propositions.The second part reviews and compares opinions of whether inferior invented technology constitutes a patent infringement by historical research in different periods and different countries. On this basis, the paper will enlist opinions from the judiciary and academia in China, including theory viewpoints, legal basis and legal application results by adopting case study for its causes.The third part analyzes relations between inferior invention technology and the principle of patent infringement. Then it explores the key points whether inferior invented technology constitutes a patent infringement by comparative research and case study, eventually leading to the proper principles and measures against the infringement behavior.The fourth part, based on the above analysis, comes to the conclusion that changed inferior behavior and omitted inferior behavior don’t infringe patent rights. The emphasis is on elements of changed behavior and how to judge whether omitted inferior behavior as infringement or not. Finally, the section analyzes the special forms and possibilities for the above mentioned two ways.This paper is dedicated to inferior invented technology discussions so as to contribute to the perfection of our country patent infringement legislation.