A Study On The Rule Of Specific Exclusion In The Determination Of Equivalent Infringement

As an effective supplement to the principle of literal infringement,the principle of equivalence provides sufficient and effective legal protection for patentees to avoid infringement of patentees’ interests by non-substantial changes,but the inherent ambiguity of the principle of equivalence also makes it controversial.In order to better balance the protection of patentees with the public interest,it has gradually become a trend in legislation to reasonably limit the scope of application of the principle of equivalence.Following the establishment of the principle of donation,estoppel and comprehensive coverage through judicial interpretations in China,the Supreme People’s Court issued the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Dispute Cases(II)in 2016,in which Article 12 stipulates the deliberate exclusion rule,"The claims use terms such as ’at least’ and ’not exceeding’ to define numerical characteristics,and ordinary people in the art read the claims,The people’s court will not support the claim that the patented technical solution places special emphasis on the limiting effect of the term on technical features,and the right holder claims that the numerical characteristics that are different from the patent are equivalent features.At this point,the deliberate exclusion rule has become another legal restriction on the application of the principle of equivalence,and its essence is to control the expansion of the scope of patent protection by the principle of equivalence by interpreting the technical characteristics of the claims,and play the function of limiting the space for the application of the principle of equivalence.Due to the late establishment of the deliberate exclusion rule in China,the provisions and application models of the deliberate exclusion rule are not mature enough,after the study of relevant domestic judicial cases,the author believes that the following issues need to be further clarified and improved: At the level of legal provisions,first,the application of the deliberate exclusion rule is limited to numerical characteristics,and whether and how can other types of technical characteristics be applied? Second,determine whether the time point of the deliberate exclusion is at the time of the patent application or the infringement? Third,can specific expressions in the specification be used alone as a basis for determining deliberate exclusion? At the level of application of law,first,the criteria for determining deliberate exclusion by different courts are not uniform;Second,some courts have insufficient analysis and argument of the subjective elements of the deliberate exclusion of the rule;Third,different courts have different views on the allocation of the burden of proof in the process of determining equivalent infringement;Fourth,the court lacked consideration of other ancillary factors in the process of finding the deliberate exclusion.The author analyzes and studies the applicable objects and application basis of the deliberate exclusion rule in the United States,and draws on the concept behind the "purpose interpretation method" in the UK,on this basis,the following suggestions are made in response to a series of issues raised above: in terms of legal improvement,first,expand the application object of the deliberate exclusion rule to structural features;Second,it is clear that the reference time for the deliberate exclusion of the determination is at the time of the patent application and not at the time of infringement;Third,specific expressions in the specification can be used alone as a basis for determining deliberate exclusion.In addition,in judicial practice,first,it should be made clear that the purpose of deliberately excluding the rule is to reasonably limit the application space of the equivalence principle,rather than completely abandoning it;Second,it is necessary to fully demonstrate the subjective elements of the deliberate exclusion rule from the perspective of ordinary people skilled in the art;Third,the burden of proof should be flexibly allocated according to the size of the gap between the technical characteristics of the alleged infringement and the corresponding numerical characteristics of the claims;Fourth,in the process of deliberately excluding,it is necessary to comprehensively consider other auxiliary factors to ensure the objectivity and persuasiveness of the conclusion.