The principle of universal application is one of the most basic principles, and it is also the first principle to judge patent infringement.
The so-called universal coverage principle (also known as the principle of covering all technical features or the principle of literal infringement) means that the technical features of the accused infringing product or method (hereinafter referred to as the accused infringer) correspond to and are the same as all the technical features recorded in the claim, or the technical features of the accused infringer add some other technical features on the basis of all the technical features recorded in the claim, so it can be concluded that there is infringement.
Legal basis:
Article 17, paragraph 1, of the Provisions of the Supreme People's Court on the Applicable Law in the Trial of Patent Disputes (adopted in 200 1 3 and revised in 20 15 respectively) and Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Applicable Law in the Trial of Patent Infringement Disputes.
Second, the principle of reciprocity.
The principle of equivalence originated in the United States, and has been widely recognized by the United States, Europe, Japan, South Korea and other major countries/regions in the world. It is an important principle for judging patent infringement and the most widely used principle by courts. Some people say that this is a revision of the principle of universal coverage.
The so-called equivalence principle means that although the technical features of the object accused of infringement are different from all the necessary technical features recorded in the claims, if this difference is immaterial, the former only realizes the basically same function and achieves the basically same effect by basically the same means as the latter, and ordinary technicians in this field can think that there is an infringement without the characteristics of creative labor, that is, equivalent characteristics.
Legal basis:
Article 59 of the Patent Law of People's Republic of China (PRC) (revised in 2008); Article 17 of the Provisions of the Supreme People's Court on the Applicable Law in the Trial of Patent Dispute Cases; Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Patent Infringement Disputes.
In the application of the principle of equivalence in the determination of patent infringement, the first problem to be faced is the determination of the object of comparison, which has gone through the process from overall comparison to technical feature comparison one by one. There are two main views on the theory of contrast object in academic circles: the theory of overall equivalence and the theory of all technical characteristics.
1. Global Equivalence Theory
The theory of overall equivalence refers to whether the accused infringer and the patented technology scheme are equal as a whole when judging the equivalent infringement.
2. Theory of all technical characteristics
All technical features are also called one-by-one technical features, and the emphasis is on the comparative analysis of the technical elements in the claims. The theory holds that all technical features in independent claims cannot be ignored. If some elements of the alleged infringement are different from the corresponding technical features recorded in the right, but their functions, means and effects are basically the same, it can be judged as equivalent infringement.
The theory of all technical characteristics is stricter than the whole equivalent theory, which avoids the uncertainty brought by the expanded interpretation of the claims, thus improving the operability of the judgment of equivalent infringement. Both the United States and EPC adopt the theory of technical feature equivalence. In China's judicial practice, for example, the court of first instance adopted the principle of overall equivalence in the patent infringement dispute case of "intracranial hematoma crushing puncture needle", while the court of second instance corrected the practice of the court of first instance and adopted the theory of all technical characteristics.
Third, the principle of estoppel.
The principle of estoppel originated from the equity law in England, and was gradually absorbed by the common law, which became an important principle that the parties should follow in the adversarial legal proceedings such as litigation.
The broad interpretation principle of estoppel means that inconsistent and different interpretations are not allowed to be made to the technical scheme from the date of publication, whether in the process of establishing rights or in the rights protection and infringement litigation after the establishment of rights. In a narrow sense, the estoppel principle refers to the patentee's commitment to limit the scope of protection of patent claims or partially give up protection by means of written statement or modification of patent documents in the process of patent approval, revocation or invalidation, and thus obtain the patent right. In patent infringement litigation, when applying the principle of equivalence to determine the scope of patent protection, the court should prohibit the patentee from re-incorporating the content that has been restricted, excluded or abandoned into the scope of patent protection.
The principle of estoppel is considered as an important restriction on the principle of equivalence. When the principle of equivalence conflicts with the principle of estoppel, that is, the plaintiff claims to apply the principle of equivalence to determine that the defendant infringes his patent right, while the defendant claims to apply the principle of estoppel to determine that he does not infringe his patent right, the principle of estoppel should be applied first.
Legal basis:
Article 6 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Patent Infringement Disputes, which was implemented on June 20 10, states: The people's court shall not support the technical scheme abandoned by the patent applicant and the patentee by modifying the patent claim, specification or opinion statement in the patent authorization or invalidation procedure, if the obligee has included it in the scope of patent protection in the patent infringement dispute case.
Fourth, the principle of donation.
The United States is the first country to apply the principle of donation. In the classic case "Miller v. Brass Company" heard by the US Supreme Court 188 1, the patentee disclosed the structure of two lamps in the specification, but only requested to protect one of them. After more than ten years, the patentee found that another structure was better, so he wanted to seek protection for this structure through the reissue procedure. The United States Supreme Court did not support the patentee's request. The court pointed out in the judgment that "if a device needs protection, but other devices that are obvious from the patent surface don't need protection, from a legal point of view, those that don't need protection will be donated to the public unless they request re-release in time and prove that other devices don't request protection because of negligence, accident or error."
Legal basis:
Article 5 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Patent Infringement Disputes, which came into effect on June 20 10, states: In a patent infringement dispute case, if the right holder brings it into the scope of patent protection, the people's court will not support the technical scheme that is only described in the specification or drawings but not recorded in the claim.
Five, the principle of preemptive right
The principle of preemptive right, that is, the right of defense first, comes from the principle of fairness of law.
Legal basis:
Article 69 of the Patent Law: Anyone who has manufactured the same product, used the same method or made necessary preparations for manufacturing and using it before the date of patent application, and continues to manufacture and use it only within the original scope, shall not be regarded as infringing the patent right.
In today's patent infringement disputes, the accused infringer often takes the right of first use as a defense. Therefore, there are strict conditions for the application of preemption principle.
Time factor:
The disputed technological achievement successfully developed by the first person and the act of preparing to implement the technological achievement shall be before the date of filing the patent application by the patentee.
Source factors:
Controversial technological achievements should be independently researched and developed by themselves or obtained through other legal channels.
Scope of use factors:
The continued use of technical achievements by pre-employed personnel shall be carried out within the original scope, and the scope of use shall not be expanded. The so-called "original scope" includes two parts: the scope of "using" the technical achievements of the competition and the scope of "necessary preparation" for using the technical achievements of the competition.
Six, the implementation of the known prior art non-infringement principle
Implementing the principle of non-infringement of known prior art, that is, the defense of known prior art and the defense right of known prior art, is a newly added system when China revised the patent law in 2008. "Existing technology" refers to the technology known to the public at home and abroad before the filing date.
When judging whether the accused infringing technology "belongs" to the existing technology, the novelty judgment principle similar to that in patent authorization is generally adopted. First of all, the principle of novelty comparison alone should be applied, and it is not allowed to combine several existing technologies for comparison. If an existing technology is completely consistent with the alleged infringing technology, the existing technology defense is established. Secondly, if there is a difference between the alleged infringing technology and the existing technology, but the difference is only "directly replacing common means (such as replacing bolts with screws)" or "common knowledge in the technical field", the defense of the existing technology should also be regarded as established.
The burden of proof of the prior art defense shall be borne by the party who raises the defense. If it is published, the parties concerned shall provide a publication with a clear publication time; For the disclosure of the use, the parties may prove the technical characteristics and disclosure time of the relevant existing technology through notarization and other means. In short, the defender should not only prove that the characteristics of the existing technology are the same as those of the alleged infringing technology, but also prove that the related existing technology was published before the patent application date.
Legal basis:
Article 62 of the Patent Law revised in 2008: In a patent infringement dispute, if the accused infringer has evidence to prove that the technology or design he implemented belongs to the existing technology or design, it does not constitute patent infringement.