Research On The Application Of The Patent Dedication Rule

Patent dedication rule is introduced from the United States.Its main purpose is to limit the application of the principle of equivalence in patent infringement judgments,to prevent the patentee from "benefiting at both ends",and to maintain the stability of the scope of patent protection.But the application of the patent dedication rule is too absolute,and lack of necessary remedy measures,some technical schemes which are not written into the claim not due to the subjective intention of the patentee may also be forced to dedicate to the public.This not only harms the interests of patentees,but also weakens the enthusiasm of inventors,which is not conducive to the creation,protection and development of intellectual property rights.In order to solve this problem,some scholars have proposed that a re-issuance procedure can be introduced.I thinks that it can also be solved from the root of the problem--the application of the patent dedication rule.Therefore,this thesis mainly studies the application of the patent dedication rule.The first chapter studies the origin and development of the patent dedication rule,and discusses the legal basis of the patent dedication rule,which mainly lies in the necessary limitation of the equivalent principle,the protection of public trust interests and the protection of patent disclosure function.China formally introduced the patent dedication rule in 2009,but it has not made clear the specific rules of its application.The second chapter studies the application of the patent dedication rule in China’s judicial practice.Through case analysis,this thesis points out the existing problems in the application of the patent dedication rule in China: first,the scope of application is too large,and the requirements for the patentee of utility model are too strict;Second,the specific rules of application are not clear,including the application way,application sequence and application conditions,resulting in different trials in judicial practice;Third,the lack of necessary relief measures does not accord with the actual situation of our country.The third chapter mainly discusses the applicable scope of the patent dedication rule in China.Community to the dedication rule applicable scope is still controversial,Through the study of China’s utility model applicable to the dedication rule,this thesis argues that in order to prevent the abuse of the dedication rule,the scope of application of the dedication rule should be strictly restricted,utility models shall be limited to the dedication rule.At the same time,this thesis demonstrates the rationality of the restriction,and puts forward some concrete measures.The forth chapter discusses the applicable conditions of the patent dedication rule in China.Although the dedication rule has been formally established in China through judicial interpretation,the content of the provisions is limited,and the specific application conditions of the dedication rule are not clear,so it is urgent to further standardize it.Based on the current situation of judicial practice,this thesis holds that the application of the dedication rule should meet two conditions: the technical solution disclosed in the specification must be specific;the disclosure of the overall concept shall not be construed as the dedication of the specific concept.The fifth chapter puts forward some suggestions on perfecting the patent dedication rule in China.Draw on the useful experience of the United States and combine the actual situation in China,the recommendations are as follows: First,restrict utility model apply to the dedication rule;Second,clarify the specific applicable rules of the dedication rule,especially the applicable conditions,the technical solution must be specific in objective aspect,and refer to the judgment standard of "rational person" in subjective aspect.Third,to provide necessary remedies for the patentee,such as introducing the patent reissue procedure,or transform the absolute dedication to the presumed dedication.