(A) the comparison of infringement judgments
1. When judging infringement, all necessary technical features of the technical scheme recorded in the claim shall be compared with all technical features of the object (product or method) accused of infringement one by one.
2, infringement judgment, generally do not directly compare the patent product infringement and infringing goods infringement. Patented products can be used to help understand relevant technical features and technical solutions.
3. When both parties of the original defendant have patent rights, it is generally impossible to compare the infringement with the patented products of both parties or the patent claims of both parties.
4, product invention or utility model patent infringement judgment comparison, generally do not consider whether the infringing object and patented technology are in the same application field.
(2) Application of universal coverage principle
1. Full coverage means that the accused infringer (product or method) reproduces all the necessary technical features of the technical scheme recorded in the patent claim, and the accused infringer (product or method) corresponds to and is the same as all the necessary technical features recorded in the patent independent claim.
2. The principle of universal coverage is the principle of covering all technical features or the principle of literal infringement. That is, if the technical features of the object (product or method) accused of infringement include all the necessary technical features recorded in the claim, it belongs to the protection scope of the patent right.
3. When the necessary technical features recorded in the patent independent claim adopt the upper conceptual features and the accused infringer (product or method) adopts the corresponding lower conceptual features, the accused infringer (product or method) falls into the protection scope of the patent right.
4. The accused infringing object (product or method) has added new technical features on the basis of using all the necessary technical features in the claim, and it still belongs to the protection scope of the patent right. At this time, whether the technical effect of the accused infringing object (product or method) is the same as the patented technology is not considered.
5. The object (product or method) accused of infringement is an improved technical scheme of the prior patented technology, and the patented object belongs to the subordinate patent. Without the permission of the prior patentee, the implementation of the subordinate patent also covers the protection scope of the prior patent.
(C) the application of the principle of equivalence
1. In determining patent infringement, when the principle of universal application is applied to determine that the object (product or method) accused of infringement does not constitute patent infringement, the principle of equivalence should be applied to determine infringement.
2. The principle of equivalence means that the accused infringer (product or method) has one or more technical features compared with the technical features protected by the patent independent claim. Literally, after analysis, it can be concluded that they are the same technical features. In this case, it should be considered that the object (product or method) accused of infringement belongs to the protection scope of patent right.
3, the scope of protection of the patent right also includes the scope determined by the technical features equivalent to the necessary technical features in the patent independent claim.
4. Equivalent features are also called equivalence. The technical features of the accused infringing object (product or method) that meet the following two conditions at the same time are the equivalents of the corresponding technical features in the claim:
(1) Compared with the corresponding technical features in the claims, the technical features in the alleged infringement act have basically the same functions and have basically the same effects by basically the same means;
(2) The technical features that ordinary technicians in the field to which this patent belongs can associate without creative labor by reading the claims and instructions.
5. Equivalence should be the mutual substitution between specific technical features, not the mutual substitution between complete technical solutions.
6. Equivalent substitution includes the distinguishing technical features in the replacement claim as well as the technical features in the preamble of the replacement claim.
7. Whether the technical features of the object (product or method) accused of infringement are equivalent to those of the independent claim shall be based on the time when the infringement occurred.
8. The principle of equivalence is applied to determine whether the specific technical features in the accused infringer (product or method) are equivalent to the corresponding necessary technical features in the patent independent claim, but not whether the overall technical scheme of the accused infringer (product or method) is equivalent to the technical scheme defined in the independent claim.
9. The determination of equivalent infringement should be based on the professional knowledge level of ordinary technicians in the patent field, not the professional knowledge level of senior technical experts in this field.
10, the scope of equivalent protection for groundbreaking major invention patents can be appropriately relaxed; The equivalent protection scope of a combined invention or a selective invention may be appropriately strict.
1 1. If the individual necessary technical features in the claim are intentionally omitted, making the technical scheme worse than the patented technical scheme in performance and effect, and the deteriorated technical scheme is obviously caused by omitting the necessary technical features, the principle of equivalence shall apply and it shall be deemed as constituting patent infringement.
12. When determining patent infringement, the principle of equivalence should not be applied to determine that the object (product or method) accused of infringement belongs to the scope of patent protection:
(1) The technical scheme accused of infringement belongs to the known technology before the filing date;
(2) The technical scheme accused of infringement belongs to a conflicting application or a prior patent application;
(3) The technical features in the object of alleged infringement belong to the technical content that the patentee explicitly excludes patent protection in the process of patent application, authorization examination and maintaining the effectiveness of patent rights.
legal ground
patent law of the people's republic of china
Article 19 Where any unit or individual applies to a foreign country for a patent for invention or utility model completed in China, it shall file a confidentiality review with the patent administration department of the State Council in advance. The procedures and time limit for confidentiality review shall be implemented in accordance with the provisions of the State Council.
Units or individuals in China may file an international patent application in accordance with the relevant international treaties to which People's Republic of China (PRC) is a party. The applicant who files an international application for a patent shall abide by the provisions of the preceding paragraph.
The patent administration department of the State Council shall handle international patent applications in accordance with the relevant international treaties to which People's Republic of China (PRC) is a party, this Law and the relevant provisions of the State Council.
Where an invention or utility model that violates the provisions of the first paragraph of this Article is applied for a patent in a foreign country, the patent right shall not be granted in China.