According to the principle of "comprehensive coverage" in the judgment of patent infringement, after comparing the technical characteristics of the patent and the accused infringing product, the focus of the dispute between the original defendant and the defendant is locked in three corresponding technical characteristics. As the patentee, the plaintiff strongly advocates the application of the "equivalence principle" in the determination of patent infringement, that the three corresponding technical features constitute equivalence, and that the defendant's products infringe the plaintiff's patent right. The defendant held the completely opposite view that the three corresponding technical features were different and unequal, and the defendant's products did not infringe the plaintiff's patent right.
To judge equivalence, we should analyze and compare the technical means, functions and effects of the corresponding technical characteristics, which is not only a legal issue, but also involves deep professional and technical knowledge. Therefore, the Intermediate People's Court entrusted the Intellectual Property Judicial Appraisal Center for appraisal.
After accepting the entrustment, the appraisal center organized relevant experts according to law to comprehensively analyze and compare the technical features of the plaintiff's patent claim with those of the accused infringing product according to the judicial interpretation of Article 56 of the Patent Law of People's Republic of China (PRC) and Article 12 of Several Provisions of the Supreme People's Court on Applicable Legal Issues in the Trial of Patent Dispute Cases (hereinafter referred to as "Several Provisions"). It is concluded that four corresponding technical features are the same, and the other three corresponding technical features have different functions, so it is concluded that the three corresponding technical features are different and unequal.
Without notifying the appraisal institution to participate, the Intermediate People's Court, after cross-examining the above appraisal report, concluded that the appraisal report essentially introduced the structural features that only appeared in the patent specification into the patent claim, narrowed the protection scope of the plaintiff's patent and rejected the appraisal conclusion. Through discussion, it is concluded that the technical means, functions and effects of the above three corresponding technical characteristics are basically the same; At the same time, it is also recognized that the three corresponding technical characteristics of the accused infringing products are "implementation to improve quality" based on patented technology, and the principle of equivalence should be applied. Therefore, it is judged that the accused infringing product infringes the plaintiff's patent right.
The same case facts and the same corresponding technical characteristics, why is the appraisal conclusion of the appraisal institution completely different from the judgment result of the court? When making an equivalent judgment, how to correctly interpret the claim with the contents of the specification and drawings? How to identify "metamorphic technology"? What does it have to do with equivalent judgment? Which is correct, the appraisal conclusion of the appraisal institution or the judgment of the court?
The above problems can be summed up in two problems. One is how to correctly interpret the claim with the contents of the specification and drawings when making an equivalent judgment. Second, how to identify "deterioration implementation" and what is the connection with the identification of equivalent technical characteristics?
case analysis
1. When making an equivalence judgment, how to correctly interpret the patent claim with the contents of the specification and attached drawings?
1 The concept, characteristics and criteria of equivalent features
There is no clear concept of equivalent technical features in the Patent Law and its implementing rules. According to the needs of judicial practice, the Supreme People's Court in the "several provisions" the first 1? Paragraph 1 of Article 56 of the Patent Law provides as follows. The scope of protection of the patent right for invention or utility model shall be subject to the contents of the claims, and the description and drawings can be used to interpret the claims, which means that the scope of protection of the patent right shall be subject to the scope determined by the necessary technical features clearly recorded in the claims, including the scope determined by the features equivalent to the necessary technical features. Equivalent features refer to features that basically achieve the same functions and effects as the recorded technical features by basically the same means, and can be associated by ordinary technicians in the field without creative labor.
This provision clearly gives the concept and characteristics of "equivalent features". In addition, from this concept, we can know that the criterion of equivalent features is the technical means, functions and effects of the necessary technical features of the patent, which are clearly stipulated in the claim itself or explained in the specification and drawings.
The key of equivalence judgment is to analyze and judge the technical means, functions and effects of the necessary technical characteristics of patents. It is necessary to understand how to interpret patent claims with patent specification and drawings.
2 How to explain the patent claim with the patent specification and drawings?
Article 56 of the Patent Law and Article 12 of the Supreme People's Court's Several Provisions both stipulate that "the claim can be interpreted with the specification and attached drawings", but how to interpret it is not further clarified.
In order to unify the understanding and facilitate the practical operation, the Beijing Higher People's Court issued the Opinions on Determining Patent Infringement (Trial) to the Beijing No.1 and No.2 Intermediate People's Courts on September 29th, 2000/KLOC-0, which was praised by Professor Zheng as "even in the field of international intellectual property justice, it is qualified to occupy a place".
The Opinion clearly and systematically summarizes how to interpret the claim with the patent specification and drawings.
(1) Article 1 of the Opinions clarifies that "the claim can be interpreted by using the specification and drawings", and at the same time, it makes a principled restriction on this interpretation, that is, "the contents of the specification and drawings cannot be introduced into the claim".
(2) Article 6 of the Opinions stipulates that "the principle of eclectic interpretation shall be adopted for the interpretation of claims with instructions and drawings. To avoid adopting the principle of peripheral restriction, that is, the scope of patent protection is exactly the same as that recorded in the written claim, and the specification and drawings can only be used to clarify some ambiguities in the claim; It is also necessary to avoid adopting the central restriction principle, that is, the claim only determines a general invention core, and the scope of protection can be extended to the content that technical experts think belongs to the patentee after reading the specification and drawings. The principle of eclectic interpretation should be in the middle of the above two extreme interpretation principles, and the reasonable and fair protection of patentees should be combined with the stability of the law and the reasonable interests of the public. " The theory of interest balance is the cornerstone of intellectual property law, and the principle of eclectic interpretation is the best embodiment of the theory of interest balance.
(3) In order to implement the principle of compromise interpretation, Article 1 1 of the Opinions stipulates that "the scope of protection of the technical scheme defined in the claim can be fairly expanded or narrowed by using the patent specification and drawings, that is, the features equivalent to the necessary technical features can be explained to the scope of patent protection, or some necessary technical features can be defined by using the patent specification and drawings".
Therefore, the equivalent feature is the result of expanding the protection scope of the technical scheme literally defined in the claims with the patent specification and drawings. It is the result of comparing and analyzing the technical means, functions and effects of the necessary technical features of patent claims in the patent specification and attached drawings with the corresponding technical features. Therefore, when interpreting the patent claim and judging the equivalence with the contents of the specification and drawings, we should first determine the technical means, functions and effects of the necessary technical features in the specification and drawings, and then make a comparative analysis with the corresponding technical features, so as to draw an objective and fair conclusion. This is consistent with the spirit of the Patent Law and the Supreme People's Court's Several Provisions.
Second, the appraisal conclusion made by the appraisal institution in this case that the corresponding technical characteristics are not equal is correct.
1 The appraisal conclusion of the appraisal institution is based on the description of the necessary technical features in the plaintiff's patent specification and attached drawings.
According to the plaintiff's patent specification and drawings, the appraisal institution described and explained the necessary technical features in the patent claim, especially the description of "the advantages and effects of this utility model", that is, in the patent, "the guide post and the guide sleeve cooperate to play the role of positioning and guiding, and a spherical pad is added on it to adjust the eccentric load, and the central hole of the spherical pad cooperates with the piston rod to increase the stability of the piston rod. Since the center hole D 1 of the spherical pad is smaller than the center hole of the booster piston D2, the guide post can be pulled up by this step when returning, and the high-pressure cavity is opened to take out the workpiece. Based on this, it is very important to judge the functions of the high-pressure piston and spherical pad lifting guide post in the plaintiff's patent, which is an objective and certain fact in the patent specification, and make an appraisal conclusion different from the corresponding technical characteristics and functions.
The appraisal conclusion of the appraisal agency is made after comparative analysis according to law.
According to the instructions and the attached drawings, the appraisal institution made a comprehensive and detailed comparative analysis of the corresponding technical characteristics according to law.
(1) In the plaintiff's patent, "the booster piston is connected with the high-pressure piston through the piston rod, and the high-pressure piston is in sliding fit with the inner cavity of the guide post" and "the booster piston is connected with the high-pressure piston through the movable connection, and the high-pressure piston is in sliding fit with the inner cavity of the guide post" in the accused infringing product, "the patented high-pressure piston not only generates high pressure on the medium, but also has the function of lifting the guide post through its spherical pad, which is determined by the variable-diameter structure of its piston rod and high-pressure piston. The patented high-pressure piston is not only a simple pressure component, but also a driving component linked with other functional components. In contrast, the defendant's high-pressure plunger is only a single-function pressure element. Therefore, the functions of the two cannot be considered to be basically the same. "
(2) In the plaintiff's patent, "the guide post is positioned and guided by the guide sleeve" and in the accused infringing product, "the guide sleeve of this patent is placed on the periphery of the guide post, and its function is to limit and guide the guide post", while in the defendant's product, "the two oil cylinders placed below are mainly used to drive the guide post to move up and down, so although the structural forms of the two oil cylinders are similar to those of the patent guide sleeve in guiding and positioning, Due to the setting of the lower cylinder of the defendant's product, the driving mode of the guide pillar was changed. In view of this, the main functions of the corresponding features are different. Therefore, it is determined that the two are neither the same nor the same. "
(3) Between the plaintiff's patent "The top of the guide pillar is connected with a spherical pad: it contacts with the transverse slider through the spherical pad" and the accused infringing product "The top of the guide pillar is provided with a flat pad, which contacts with the transverse slider", "The patented spherical pad has a spherical surface and is used to adjust the eccentric load to protect the guide pillar. The defendant's flat pad presses the lower pad with its lower surface, and its upper part contacts the transverse slider, only isolating the guide post from the slider. In addition, because the central aperture of the spherical pad in this patent is smaller than the outer diameter of the high-pressure piston, a step is formed between the lower plane of the spherical pad and the upper plane of the high-pressure piston, and the function of lifting the guide post is realized through this step, but the flat pad of the defendant does not have this function. So far, it can be seen that the working means and functions of the flat pad in the defendant's product are substantially different from those of the patented spherical pad, and this corresponding feature does not constitute equivalence.
To sum up, it is correct for the appraisal institution to objectively explain the functions of its high-pressure piston and spherical pad lifting guide post according to the patent specification, and draw different and unequal conclusions after analyzing and comparing it with the corresponding technical characteristics according to law.
Third, in this case, the court's understanding of "the contents of the description and the attached circle cannot be introduced into the claim" is one-sided, and the determination that the corresponding technical features are basically the same in means, functions and effects is debatable.
1 the court has a one-sided understanding of "the contents of the specification and drawings cannot be introduced into the claim".
There is no restriction in the Patent Law and its detailed rules for implementation and the Supreme People's Court's Several Provisions that "the specification and drawings can interpret the claims" or that "the contents of the specification and drawings cannot be introduced into the claims". This restriction appears in Article 15 of the Opinions of Beijing High Court. In this paper, the introduction of the contents of the specification and drawings into the patent claim is defined as the inclusion of the technical scheme that is only recorded in the patent specification and drawings but not reflected in the patent claim into the scope of patent protection. On the basis of summarizing judicial practice, this paper also summarizes three situations that cannot be introduced. Related to this case is caseNo. 1, that is, if a technical scheme has been fully disclosed in the patent specification and described and embodied in detail, but it is not recorded in the claim, it cannot be included in the scope of patent protection when interpreting the claim.
It should be noted that the specification and the appended drawings cannot introduce the claim as a "technical solution", so is there a difference between technical features and technical solutions? All legal and judicial interpretations, including the Opinions of Beijing High Court, have no definition of technical solutions. However, from the definition of "necessary technical features" in Article 125 of the Opinions of Beijing Higher People's Court, we can see that there are differences between them: necessary technical features refer to technical units or a collection of technical units that can independently produce technical effects when solving technical problems of inventions or utility models. For example, the technical features of a product patent include the components of the product and the combination relationship between the components.
The above induction can be understood as follows: the single component or the combination relationship between single components in the utility model patent can not be called a technical scheme, but can only be called the technical characteristics that constitute the technical scheme. The above judgment confirms and explains in the patent specification that the variable-diameter structural features of the high-pressure piston, spherical pad and their combination to realize the function of driving the guide post in this patent do not belong to the technical scheme in the above induction. Of course, there is no question of whether the appraisal institution is "introduced", so the court's understanding of "the contents of the specification and attached drawings cannot be introduced into the claim" is one-sided.
It is simple and empty to analyze and compare the court decisions from the aspects of technical means, corresponding functions and effects of technical features, and the conclusions are unconvincing and debatable.
In this case, the court knew that the high-pressure piston and spherical pad in the plaintiff's patent had the function of lifting the guide post, and the guide post was driven by the technical characteristics of "a flange fixed on the guide post and two small oil cylinders connected with the flange at the lower part of the frame" corresponding to the guide sleeve in the plaintiff's patent. Based on "the contents of the specification and drawings cannot be introduced into the claim", It was found that "the appraisal report essentially introduced the feature of the pillar-driven step structure that only appeared in the patent specification into the patent claim 1, and made a narrow interpretation of the patent claim 1", and that "the changed pillar-driven structure in the accused infringing product is the technical feature of the plaintiff's patent claim 1". Then, in the name of excluding the driving structure of the guide post, what is essentially excluded is the function of the driving guide post which is essential to realize the patent purpose and objectively exists in the corresponding technical characteristics of the patent, so that the technical characteristics of the patent are different from those of the accused infringing product. It is conceivable that the comparative analysis in this case can only be simple, one-sided and empty. Taking the comparative analysis of high-pressure piston and high-pressure plunger in the judgment as an example, the judgment holds that "as far as high-pressure piston and high-pressure plunger are concerned, piston and plunger are two most well-known pressurization components, and replacing piston with plunger can be associated with ordinary technicians in the field of hydraulic machinery without creative labor. The two are basically the same in technical means. They all use columnar objects to enter the cavity of the guide post and compress the pressure oil in the cavity of the guide post under the drive of external force. The two functions are basically the same, they both compress the pressure oil in the guide post cavity to realize pressure amplification and provide ultra-high pressure for the high pressure cavity. The effects achieved by the two are basically the same, and the pressure amplification effect and pressure magnification achieved by the two are the same. " This analysis is unconvincing and debatable.
To sum up, the court in this case confused the difference between technical features and technical solutions, and unilaterally understood it as "the contents of the specification and drawings cannot be introduced into the claim", so the conclusion that the three corresponding technical features constitute the same is debatable.
Four, understanding and identification of metamorphic technical scheme.
1 concept of deterioration technical scheme
In China's patent law and its implementing rules, there is no definition of metamorphic technology in the Supreme People's Court's Several Provisions. In the opinion of Beijing Higher People's Court, Article 4 1 defines a deteriorated technical scheme as: deliberately omitting some necessary technical features in the claim, which makes its technical scheme inferior to the patented technical scheme in performance and effect, and this deteriorated technical scheme is obviously caused by omitting the necessary technical features, so the principle of equivalence should be applied and it should be considered as patent infringement.
2 Characteristics of deterioration technical scheme
From the above concepts, we can know that the deterioration technical scheme should have the following characteristics:
(1) It is the whole technical scheme that is accused of deterioration, not a certain technical feature.
(2) The accused deterioration technical scheme is formed by omitting some necessary technical features in the claim.
(3) Due to the above reasons, compared with the patented technical scheme, the overall effect and performance of this technical scheme are not as good as the patented technical scheme.
(4) Apply the principle of equivalent judgment to the deteriorated technical scheme and determine that it constitutes infringement.
In the above cases, it is debatable whether the implementation of the court has deteriorated.
Because the court found that the reason for implementing the deterioration was inconsistent with the characteristics of the above-mentioned deterioration technical scheme,
(1) The court found that the first reason for the deterioration was that "the defendant changed the corresponding technical features known to ordinary technicians". Compared with the above-mentioned deterioration technical scheme by omitting some necessary technical features in the claims, "change" and "omission" are obviously different in ways. The court's understanding of the improved execution mode is inconsistent with the above provisions.
(2) The second reason why the court found that the improvement was implemented was that the technical features changed by the defendant "did not actually produce better results than the plaintiff's patented technology". There are two points worth discussing here. The first is to judge whether it is inferior, and it is necessary to compare the effect of the technical scheme rather than the effect of the specific technical features. The second is that this determination has not been fully and carefully analyzed. In fact, products accused of infringement are superior to patented products in many aspects. For example, because the guide sleeve used in the patent locates and guides its guide post, only a small "window" is designed on the guide sleeve, which is very inconvenient to take and put the workpiece. However, the accused infringing products are guided by the combination of plunger and small oil cylinder, which not only stabilizes the guide post, but also broadens the space for taking and placing the workpiece.
Concluding comments
Through the above case analysis, we can see that the identification of patent infringement equivalence includes two aspects: one is the identification of equivalent technical characteristics, and the other is the identification of degraded technical solutions. The principle of eclectic interpretation should be adopted in both judgments, and the technical features of the patent claim or the whole patent technical scheme should be correctly explained with the contents of the specification and drawings, so as to balance the interests of the patentee and the public and realize social stability, civilization and progress.