Research On The Judicial Application Of Prosecution History Estoppel In Patent Infringement Judgment

In the field of patent law system,Prosecution history estoppel which derived from the judicial practice of the United States,has a great effect in determining the scope of patent rights.It limited the doctrine of equivalence and maintained patent's notice function.China's Patent Law has not yet provided for prosecution history estoppel,but in the judicial practice,it has been widely used for a long time.Due to lack of relevant applicable standards,the court can not accurately apply the principle to handle patent infringement disputes,which brings great uncertainty to the judicial activities and affects the balance of interests between the patentee and the public.This paper analyzed the domestic application of prosecution history estoppel,summarized the problems in the application of prosecution history estoppel in judicial practice.Then it analyzed the nature of prosecution history estoppel and it's applicable standards(including object,extent,subject and so on)from the perspective of the application of patentability condition in patent infringement judgment.On the basis of the above research,this paper made some suggestions on the application of prosecution history estoppel in the patent infringement judgment.This paper is divided into three parts: introduction,body and conclusion.The introduction part first expressed the motive and purpose of this paper,the value and significance of this research,and then introduces the application of prosecution history estoppel in our country,including it's legislative situation and judicial practice.The first chapter began with the relevant provisions of prosecution history estoppel in the judicial interpretation and the local judicial documents of Beijing.Based on the analysis of the judicial cases about the prosecution history estoppel,this paper summarized the issues of applicable object,extent,subject about prosecution history estoppel,and the issue of judge standard about "abandonment" in prosecution history estoppel.In the second chapter,through the comparison of prosecution history estoppel and prior art defence,it is pointed out that there is an overlap in the application of the two,and the reason of the overlap is that both of them are derived from the requirements of patentability.On this basis,the author analyzed the applicable extent of this principle and the problem of separation of powers according to the theoretical basis of prosecution history estoppel and the theory of "hypothetical claim" in America's judicial practice.And then analyzed whether the court should apply the principle initiatively from the perspective of the nature of the defence and the transfer-time of provide evidence responsibility.the third chapter made some suggestions on the judicial application of the prosecution history estoppel in the patent infringement judgment.First,according to whether amendments and states involve patentablity,the court may apply the principle respectively: For the applicable extent,when the amendments and states do not involve patentablity,prosecution history estoppel should be used catiously.For those who involve patentability,the court should apply the principle initiatively.For those who do not involve patentability,the court use this principle only when the parties alleged and provided evidence.When there is an overlap between prosecution history estoppel and prior art defence,prior art defence should be used preferentially.Second,coordinate the administrative procedures of patent examination and the judicial procedure of patent infringement judgment to fill the loopholes arising from the separation of powers.The last part is the conclusion,summarize the main contents of this paper,and point out the significance of this research.The summary is Mainly about the nature,the applicable extent,the applicable subject of prosecution history estoppel.