Viewpoint | Reflections on the excessive expansion of patent rights in the context of the application of the "equivalence principle"
Published:
2022-09-28
At present, in the trial of patent infringement cases, Chinese courts usually use the rules of "comprehensive coverage principle", "literal infringement principle" and "equivalence principle" to determine whether the alleged infringement constitutes infringement of the target patent. When the infringement judgment rules are applied to the trial of patent infringement cases, the court will first interpret the claims of the target patent literally, then compare the technical characteristics of the accused infringing object and the claims of the target patent one by one, and finally judge the consistency of the "mode/principle function results" of the two and whether there is "creative labor. However, the application of the above-mentioned rules to determine patent infringement has its inherent defects, in the interpretation of the meaning of the claim and the definition of the scope of patent protection, sometimes too carefully limited to the literal expression of the claim, often can not give the patentee fair and effective legal protection, that is, relative to the patentee or inventor's contribution to the existing technology, to give its patent protection scope is too small; sometimes, due to the change of the meaning of a certain technical feature caused by the progress of technology, the abuse of the functional limited technical feature in the target patent claim, etc., it is easy to ignore the examination of the creative difference in the mode/principle, thus providing the patentee with excessive legal protection, that is, the scope of patent protection is too large compared with the patentee or the contribution made to the existing technology. In other words, if the court applies the above-mentioned patent infringement determination principle in strict accordance with the literal meaning of the patent claim, there will always be a series of problems such as the mismatch between the scope of patent protection and the contribution of the patent to the existing technology. The author believes that in order to correct the deviation brought by the above-mentioned patent infringement judgment rules and balance the interests of the public and the patentee, the mechanism of restricting the excessive application of the principle of equivalence can be introduced. In the process of determining whether it constitutes patent infringement, in some specific cases, although the technical characteristics of the accused infringing object are the same as the corresponding technical characteristics in the patent claim, compared with the target patent, the working methods or implementation principles of the two are essentially different. Then even if the final function and effect of the two constitute the same substance, at this time should also be determined not to constitute patent infringement, that is, the principle of inverse equivalence. The establishment of the principle of inverse equivalence precisely solves the above-mentioned problems. On the one hand, it emphasizes the protection of prior technology patent rights, maintains the legitimate interests of prior technology research and development personnel, and encourages the public to innovate; on the other hand, by limiting the prior The scope of over-protection of patents, giving certain patent protection to post-technology research and development personnel is conducive to redevelopment and re-creation, to a certain extent, it has promoted the development and progress of science and technology, especially high and new technology. The United States is the first country in the world to establish the principle of inverse equivalence and the provisions of the principle are more perfect, although the principle was established in the United States at the beginning of its application encountered many difficulties, but with the continuous improvement of the rules, the continuous progress of technology, the application of the principle has great potential. Japanese courts in the trial of patent infringement cases, in the face of method or function limited product claims, the court will also apply similar to the principle of reverse equivalence to determine whether it constitutes equivalent infringement. In Taiwan, the principle of reverse equivalence is also an effective principle for local courts to determine patent infringement. By observing the application of the principle of inverse equivalence in the above-mentioned countries, the premise is that the accused infringing property has fallen within the literal scope of the claim protection of the target patent and has constituted a literal infringement. According to this, the elements that do not constitute patent infringement are all substantial differences between the accused infringing property and the completion method/principle of the target patent. Even though China's existing patent laws and regulations on the interpretation of patent claims is more strict, limiting the improper expansion of the scope of patent claims, but in practice, the patent claims and patent specifications are still out of touch. It should be noted that the role of the principle of reverse equivalence in the determination of patent infringement is far more than limiting the improper scope of the claims. Whether it is from the objective conditions or from the perspective of institutional needs, it is necessary to use this principle to amend and improve the existing patent infringement determination system, so that the interests of all parties can be balanced, which is in line with the ultimate value pursuit of the patent legal system. Zhongcheng Qingtai Law Firm has a large number of high-level expert teams in the field of intellectual property legal services such as patents, trademarks, copyrights, etc., providing satisfactory protection solutions and performance for the intellectual creativity and technological innovation of a wide range of client groups. Previously, many lawyers from Zhongcheng Qingtai have been selected into the talent expert database of the Provincial Protection Center. In the next step, Zhongcheng Qingtai lawyers will strengthen the publicity of intellectual property rights for government agencies, institutions, enterprises, and universities, and comprehensively promote the creation, use, protection, management and service of intellectual property rights. Improve the level, and help the high-quality development of intellectual property rights through their own professional and dedicated services.
At present, in the trial of patent infringement cases, Chinese courts usually use the rules of "comprehensive coverage principle", "literal infringement principle" and "equivalence principle" to determine whether the alleged infringement constitutes infringement of the target patent. When the infringement judgment rules are applied to the trial of patent infringement cases, the court will first interpret the claims of the target patent literally, then compare the technical characteristics of the accused infringing object and the claims of the target patent one by one, and finally judge the consistency of the "mode/principle function results" of the two and whether there is "creative labor.
However, the application of the above-mentioned rules to determine patent infringement has its inherent defects, in the interpretation of the meaning of the claim and the definition of the scope of patent protection, sometimes too carefully limited to the literal expression of the claim, often can not give the patentee fair and effective legal protection, that is, relative to the patentee or inventor's contribution to the existing technology, to give its patent protection scope is too small; sometimes, due to the change of the meaning of a certain technical feature caused by the progress of technology, the abuse of the functional limited technical feature in the target patent claim, etc., it is easy to ignore the examination of the creative difference in the mode/principle, thus providing the patentee with excessive legal protection, that is, the scope of patent protection is too large compared with the patentee or the contribution made to the existing technology. In other words, if the court applies the above-mentioned patent infringement determination principle in strict accordance with the literal meaning of the patent claim, there will always be a series of problems such as the mismatch between the scope of patent protection and the contribution of the patent to the existing technology.
The author believes that in order to correct the deviation brought by the above-mentioned patent infringement judgment rules and balance the interests of the public and the patentee, the mechanism of restricting the excessive application of the principle of equivalence can be introduced. In the process of determining whether it constitutes patent infringement, in some specific cases, although the technical characteristics of the accused infringing object are the same as the corresponding technical characteristics in the patent claim, compared with the target patent, the working methods or implementation principles of the two are essentially different. Then even if the final function and effect of the two constitute the same substance, at this time should also be determined not to constitute patent infringement, that is, the principle of inverse equivalence.
The establishment of the principle of inverse equivalence precisely solves the above-mentioned problems. On the one hand, it emphasizes the protection of prior technology patent rights, maintains the legitimate interests of prior technology research and development personnel, and encourages the public to innovate; on the other hand, by limiting the prior The scope of over-protection of patents, giving certain patent protection to post-technology research and development personnel is conducive to redevelopment and re-creation, to a certain extent, it has promoted the development and progress of science and technology, especially high and new technology.
The United States is the first country in the world to establish the principle of inverse equivalence and the provisions of the principle are more perfect, although the principle was established in the United States at the beginning of its application encountered many difficulties, but with the continuous improvement of the rules, the continuous progress of technology, the application of the principle has great potential. Japanese courts in the trial of patent infringement cases, in the face of method or function limited product claims, the court will also apply similar to the principle of reverse equivalence to determine whether it constitutes equivalent infringement. In Taiwan, the principle of reverse equivalence is also an effective principle for local courts to determine patent infringement. By observing the application of the principle of inverse equivalence in the above-mentioned countries, the premise is that the accused infringing property has fallen within the literal scope of the claim protection of the target patent and has constituted a literal infringement. According to this, the elements that do not constitute patent infringement are all substantial differences between the accused infringing property and the completion method/principle of the target patent.
Even though China's existing patent laws and regulations on the interpretation of patent claims is more strict, limiting the improper expansion of the scope of patent claims, but in practice, the patent claims and patent specifications are still out of touch. It should be noted that the role of the principle of reverse equivalence in the determination of patent infringement is far more than limiting the improper scope of the claims. Whether it is from the objective conditions or from the perspective of institutional needs, it is necessary to use this principle to amend and improve the existing patent infringement determination system, so that the interests of all parties can be balanced, which is in line with the ultimate value pursuit of the patent legal system.
Zhongcheng Qingtai Law Firm has a large number of high-level expert teams in the field of intellectual property legal services such as patents, trademarks, copyrights, etc., providing satisfactory protection solutions and performance for the intellectual creativity and technological innovation of a wide range of client groups. Previously, many lawyers from Zhongcheng Qingtai have been selected into the talent expert database of the Provincial Protection Center. In the next step, Zhongcheng Qingtai lawyers will strengthen the publicity of intellectual property rights for government agencies, institutions, enterprises, and universities, and comprehensively promote the creation, use, protection, management and service of intellectual property rights. Improve the level, and help the high-quality development of intellectual property rights through their own professional and dedicated services.
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