In judicial practice, the conditions for judging infringement by the principle of equivalence are strict rather than loose, so as to maintain the objectivity, consistency and predictability of the application of the principle of equivalence to the maximum extent.
The original intention of the principle of equivalence is to prevent the infringed from escaping the legal responsibility of patent infringement through some minor and immaterial changes, and to give the patentee effective relief. The criterion of the principle of equivalence is "the way, function and effect are the same", that is, whether the patented invention and the alleged infringement get basically the same function and produce basically the same effect in the necessary technology is the basis for judging whether it constitutes infringement (also known as "three basics"). In practice, the effect caused by equivalent substitution is different, which may be better or worse than the patent. However, as long as the changes within the scope of realizing the purpose of the invention belong to the same scope of the principle of equivalence, some inventions are still modified in practice. If the purpose of the invention cannot be achieved or the technical means have changed fundamentally, it does not constitute patent infringement. Evolution of the principle of equivalence in judging infringement: In the evolution of the comparative method for judging patent infringement, whether the infringement is established is determined by the principle of all technical features of the invention patent, that is, each technical feature of the independent claim appears in the accused infringing object in the same way or in a similar way, and one of them must be met, otherwise it cannot be considered as infringement. In later judicial decisions, all technical features were replaced by the overall equivalence rule, which obviously strengthened the protection of patentees. However, the overly broad interpretation of the claims increases the uncertainty of the application of the principle of equivalence, which affects the public's interests, and then the standard of "one-to-one correspondence of characteristics" appears, and the comparison method has undergone major changes. Judging infringement through "factor comparison method" to balance the interests of patentees and the public. This method extends the scope of patent protection from literal definition to all equivalents in the claims, excluding irrelevant substitution and simple reproduction. The standard of equivalent substitution is whether the accused infringer obtains substantially the same function and exerts substantially the same effect in substantially the same way, and the similarity of this "way, function and effect" is obvious to ordinary technicians in this field. In this case, it can be considered as patent infringement.
There are both objective and subjective criteria for correctly understanding the principle of reciprocity. The objective criteria are "three consistences" and "three basics", while the subjective criteria are "one commonality". Objectively analyze whether the accused infringer and the patented technology have basically the same function, and achieve basically the same effect by basically the same means, and subjectively judge that ordinary technicians in this field can clearly read the claims and instructions.
Seeking the balance of interests is the ultimate goal of the legal adjustment of the main function of social mechanism, which can not only stimulate the enthusiasm of research developers, but also prevent the blurred boundary of patent protection from harming public interests. When judging patent infringement, it is emphasized that patent claims should be used as the standard to determine the scope of patent rights, and it is not appropriate to expand the scope of rights at will, and the "three consistency" test standard equivalent to infringement comparison should be correctly applied.
The principle of "three conformity" is an abstract standard, which provides a roughly defined direction for judging infringement. The determination of equivalent infringement is applicable to specific cases, which requires lawyers to fully consider relevant comparative parameters and make prudent judgments in accordance with procedural rules on the premise of balancing interests. Specifically, in the process of comparison, the cognitive ability of ordinary technicians is taken as the comparison scale, the consistency of "mode, function and effect" is taken as the comparison parameter, and the subjective judgment of ordinary technicians is taken as the error reference.
In practical cases, the understanding of the three consistent standards of "method, function and effect" is quite different. The obligee always gives a broad interpretation, while the infringer does the opposite. Because of its technical nature, judicial adjudicators are often passive. After all, technology has its abstract side, and there is no other credible method except these technologies. The identification standard of "three consistences" is empirical to a certain extent and is provided to the judicial organs under the existing technical conditions.
For us, the principle of "equivalence and three consistences" is imported, and the patent protection system in China is mostly established under the shaping of external forces. Therefore, we should always pay attention to the latest developments, analyze the advantages and disadvantages, correctly delimit the protection boundary between the private sphere and the public sphere, and explore the idea of establishing the principle of equivalence. For high-tech patents involving the national economy and people's livelihood, major scientific research projects and providing strong technical support for economic development, a broad interpretation should be made to stimulate the patentee's enthusiasm to continue to increase investment in science and technology. For the technology introduced to improve the backwardness of some technical fields, we should emphasize the publicity function of patent claims to the public, strictly interpret patent claims to protect public interests, attach importance to the standardization of judicial rules, reasonably restrict the scope of interpretation authority of subjective discretion, and maintain the freedom and openness of the public sphere.
It is contradictory to strengthen patent protection and stop patent abuse. Protecting rights is the main aspect of contradiction, and stopping abuse can not be ignored. According to the rules of patent interpretation, the protection scope of patent right should be defined accurately first.
The principle of three consistences in practical cases: From the patent infringement cases of Beijing A Company and Hebei B Company, it can be seen that both companies are manufacturers of fire shutter. The high-temperature fire shutter produced by Beijing A Company obtained the invention patent, while the super fire shutter produced by Hebei A Company did not obtain the patent. The two companies met at a tender meeting because they participated in the bidding at the same time. A company in Beijing filed a lawsuit on the grounds that the fire shutter produced by a company in Hebei province constituted patent infringement after winning the bid. From the analysis of patent claims and specifications, the technical characteristics of the object accused of infringement are basically the same, and how to determine whether it is infringement is a problem. The plaintiff appealed for patent infringement, and the defendant raised a defense on the grounds that the known technology and technical characteristics were obviously different.
1. The plaintiff sued that the defendant's fire shutter infringed the rights other than patent claim 4, paid attention to the literal expression of the patent claim and ignored the central content of its expression, and included all products with the characteristics of "composite curtain and interlayer of refractory fiber products" in its protection scope, thus expanding the protection boundary of the patent right.
Reasonable definition of the scope of right protection: determine the protection boundary of patent right according to the content of patent claim, and interpret the claim legally. In particular, claims with complex contents can usually be divided into several relatively independent technical features. If you don't explain the claims and simply copy them, it is impossible to get a clear scope of patent protection. If the technical characteristics of the accused infringing object are not analyzed and judged, there will be the lack of the comparative object or the error of the comparative basis. The necessary technical scheme of the plaintiff's patent claim is "roller blind composed of multi-layer refractory fiber products", which is interpreted as "excellent high temperature resistance", "composite sewing of refractory fiber products with extremely low thermal conductivity", "refractory fiber blanket interlayer reinforced by high-temperature stainless steel wire or stainless steel wire rope" and "refractory fiber cloth with refractory fiber yarn and high-temperature stainless steel wire" (the refractory fiber cloth on the curtain surface is ceramic fiber cloth). "High-temperature resistant stainless steel wires can be implanted at equal intervals in the longitudinal direction of the curtain surface of the roller blind"; The "refractory fiber products" recorded in the manual include carbon fiber, high-temperature resistant stainless steel wire, ceramic fiber, expanded or ordinary glass fiber, high silica fiber, mullite fiber, alumina fiber, zirconia fiber, mineral wool and various yarns, fabrics, ropes, carpets and felt products made of them by pure spinning or blending. These materials are usually used in combination or individually. The manual emphasizes that "if ceramics are used, therefore, we should not break through this clear condition when interpreting the claims. This definite qualification should think that it is impossible for ordinary technicians in the field to think that the glass fiber cloth without special treatment or the glass fiber cloth without fire-resistant oxidation coating can still achieve the purpose of the invention by reading the claims and specifications, so only the structure of ordinary glass fiber cloth should be excluded from the scope of patent protection, otherwise it is equivalent to deleting the words "made of fiber yarns implanted with stainless steel wires" and "must be oxidized or coated" in the independent claims.
2, is to find out the corresponding technical characteristics of the alleged infringement.
Judging from the necessary technical features of the patent claim 1, the plaintiff's patent is characterized by "functional limitation of fire prevention and heat insulation", and the specific implementation recorded in the specification should be considered when interpreting this claim. The purpose of the invention patent involved in the specification is to overcome the existing defects and provide a fire-resistant fiber composite curtain surface for fire-proof and heat-insulating roller blinds with long fire-resistant limit time, good heat radiation resistance, good high-temperature strength and stable chemical properties. From the analysis of the claims and specifications, the plaintiff's invention is based on the above-mentioned basic methods, with the functional limitation of temperature rise on the back as the judgment condition of fire resistance limit as the necessary technical feature. The technical features of function limitation mean that the invention is not limited by the structural features or method steps in the patent claims, but by the functions, functions or effects of the components or method steps in the invention. In the determination of infringement, the functional limitation of technical features should be interpreted as covering only the specific implementation methods or steps recorded in the specification, and the content of technical features should be reasonably limited based on the interpretation of patent claims and specifications. Before judging whether the infringement is over, we should identify and define which technical features are necessary and which are not necessary or general technology. In this case, we should not expand our understanding that all technologies for manufacturing "refractory fiber composite roller blinds" constitute infringement.
Analyze and find out the function and effect of "back temperature rise as the judgment of fire resistance limit" in the patent specification involved. The instruction further defines "fire-resistant fiber products" as "fire-resistant fiber blankets reinforced with high-temperature resistant stainless steel wires" and "fire-resistant fiber cloths made of fire-resistant fiber yarns with high-temperature resistant stainless steel wires sandwiched between them are located at both sides". The specific implementation of the technical scheme is stated in the instruction: if ceramic fiber yarn, cloth and rope are used, they must be subjected to fire-retardant coating or high-temperature oxidation treatment at 250-450 degrees. The roller blind is made of high-temperature resistant sewing thread or high-temperature resistant stainless steel wire, and high-temperature resistant stainless steel wire or other high-temperature resistant reinforcing materials can be added to the yarn. It can be seen that the necessary technical feature of the plaintiff's invention patent is that "the fire-resistant fiber products are sandwiched in the middle, and the fire-resistant fiber cloth made of fire-resistant fiber yarns with high-temperature stainless steel wires in the middle is located on both sides, and the temperature rise on the back is judged as a functional limitation", and the plaintiff confirms that the alleged infringement does not belong to claim 4 "The fire-resistant fiber cloth is made of fire-resistant fiber yarns with high-temperature stainless steel wires". According to the specification, the plaintiff's claim 4 is the necessary technical feature of "judging the fire resistance limit by the temperature rise on the back" and "fixing the fire-resistant fiber cloth on the back and fire-facing surface of the interlayer of fire-resistant fiber products". If this claim is excluded, the plaintiff's patented technology cannot realize its function of "judging the fire resistance limit by the temperature rise on the back". The technical features of the alleged infringing products are not exactly the same as or equivalent to the plaintiff's claims 1-3 and 5-9. The technical scheme of the defendant's super-class fire shutter is a combination of "glass fiber, galvanized steel plate and metal mesh". Its structural features are different from those described in the plaintiff's instructions, such as "fire-resistant fiber cloth made of fire-resistant yarn coated with fire-resistant coating and implanted with high-temperature resistant stainless steel wires", "when ceramic fiber yarn, cloth and rope are used, they must undergo fire-resistant coating or oxidation treatment at a high temperature of 250-450 degrees", and another defendant accused of infringement "smoke screen hanging wall" is made of glass fiber cloth, ceramic fiber blanket, steel wire rope and ceramic fiber. The characteristics of ceramic (coal gangue) fiber products and glass fiber cloth on the surface are different from those of "specially treated by oxidation or coating" and "refractory fiber cloth woven with stainless steel wire" recorded in the plaintiff's patent specification. The smoke-proof wall hanging is composed of glass fiber cloth without steel wire, ceramic fiber blanket without oxidation treatment, coal gangue fiber blanket, galvanized metal rope and glass fiber cloth. The "fiber cloth" on the surface of the smoke-proof wall is not woven by the fire-resistant fiber yarn of high-temperature resistant stainless steel wire, and there is an extra layer of coal gangue fiber blanket, which does not belong to the plaintiff's claim.
3. It is necessary to compare the defined scope of patent protection with the object of alleged infringement, and analyze and determine whether there is infringement or not. These three steps are indispensable.
The premise of judging patent infringement is to reasonably determine the boundary of patent right, insist on ensuring the balance of public interests, accurately define the scope of patent protection, safeguard the market order of fair competition and the legitimate rights and interests of citizens, properly handle the relationship of moderate protection by using judicial policies and legal application technology, strictly grasp the applicable conditions of patent infringement, avoid abstract protection and prevent excessive application of infringement.
The object of alleged infringement was produced according to national standards, and there is also a relationship between patent right and national standards in this case. This requires attention, not only to prevent the abuse of patent rights by using standards, but also to help form a number of core technical standards in key technical fields. For patent infringement disputes involving national, industry or local standards, according to the characteristics of industries and standards, determine the nature of behavior and give corresponding legal relief. According to the specific situation of the construction industry, there is a case reply about the method of judging patent infringement in the construction industry and paying patent fees. If the patentee fails to make a clear patent protection statement when participating in the formulation of national standards, it shall be deemed as allowing enterprises that can implement national standards to use them free of charge.
Proceeding from the principle of consistent method, function and effect, the structure of the patent in this case is different, and it cannot be simply considered that it only increases or decreases the difference of layers, but has different physical effects on the functional effectiveness and index fixation of fire shutter parts. There are metal plates and metal nets in the fire shutter, and the technical effect of enhancing radiation protection and blocking heat source fire prevention should be better than that of this patent. It should be considered that the increase or non-increase of the structure cannot achieve the same effect by basically the same means, so the accused infringing product is not equivalent to the corresponding technology of this patent. Therefore, the products accused of infringement do not belong to the scope of patent protection.