What is the standard for judging patent infringement?

The principle of judging patent infringement has always been a difficult problem in judicial practice in various countries. The determination of patent infringement is different from the determination of contract breach. The contract has corresponding contract terms, which is more operable, but the judgment of patent infringement needs to be compared with the claims. The accused product scheme is inconsistent with the claim in many cases. To what extent does inconsistency constitute infringement and to what extent does it not? Judging from the judicial practice of infringement judgment abroad, it has gone through a comparative process from the overall scheme to the specific characteristics. China's infringement judgment draws lessons from foreign countries to a great extent, especially. Mbth is a difficult problem in the judicial practice of various countries. Basic principles: the principle of universal application, the principle of universal application and the principle of universal application are one of the most basic principles for identifying patent infringement. The so-called universal application principle means that if the accused object or method is infringed, then the product or method should have every feature described in the patent claim and be indispensable. When judging patent infringement, the principle of universal coverage should be applied first. In the following cases, it is considered that the defendant has completely covered the claim. 1, literal infringement. In other words, through literal analysis and comparison, it can be concluded that the technical characteristics of the defendant are the same as the necessary characteristics of the patent. For example, a patent claims protection: H-shaped strong magnetic field magnetized cup (1), which is characterized by embedding two permanent magnets (2) on both sides of the cup. If permanent magnets are embedded on both sides of the cup of the controlled object, it can be seen that the structure of the controlled object is exactly the same as that described in the claims. 2. This patent claim uses the upper concept, and the structure disclosed by the defendant belongs to the specific concept in the upper concept. In this case, the principle of universal coverage is applicable and the defendant infringes. For example, a patent claims that a new robot walking mechanism is characterized in that a motor is connected with a transmission mechanism, and the output shaft of the transmission mechanism is provided with a driving wheel. The structure of the controlled object is that the motor is driven by a gear and the output shaft is equipped with a driving wheel. The defendant used gear transmission, and the structure of gear transmission belongs to the specific concept of "transmission mechanism", so the defendant belongs to infringement. 3. The accused technical features are more than the necessary technical features of the patent, that is to say, compared with the patent claim, the accused technical features not only contain all the features of the patent claim, but also add features. This situation is still infringement, because the application of the principle of universal coverage means that as long as the accused has all the features of the patent claim, it belongs to infringement, regardless of whether the accused has more features than the claim. For example, a patent claims that an electric mattress is characterized by resistance wires with good insulation performance. The controlled structure has a resistance wire with good insulation, and also has a resistance wire short-circuit protection device. Although the defendant has more features than the claim, it may also be creative. Because the defendant's structure covers all the features of the claim, the defendant infringes. In practice, the public may not understand this point, and feel that the features of the controlled object are more than the claims, and the performance may be better than the patented product. Why should it be identified as infringement? This is because patents protect intellectual achievements. If the later product is improved on the basis of the patented product, although its performance may be better than that of the patented product, it is necessary to obtain the permission of others because it uses the patents and intellectual achievements of others, otherwise it is infringement. Another problem arises from this, that is, the defendant mentioned above has more features than the patent claim, but the extra features may be creative, or they may apply for a patent and obtain a patent right. In judicial practice, this often happens, that is to say, the defendant also has a patent applied after the plaintiff, which is an improved patent based on the plaintiff's patent. As mentioned above, because the defendant comprehensively covered the claim features of the plaintiff's patent, the defendant infringed, even if the product was patented. In order to solve this problem, the Supreme People's Court has issued a judicial interpretation, which clearly stipulates that if the plaintiff and the defendant have patents, if the defendant's patents are backward, then the defendant's patents will not be considered when judging patent infringement. Under what circumstances does the defendant not infringe? When the defendant lacks the technical features of the claim, the defendant does not infringe. What needs to be pointed out here is that in this case, the defendant does not infringe, provided that the principle of equivalence and the principle of repeated designation do not apply to the determination of infringement, which will be discussed later. For example, a patent claims that a novel fire hydrant protection cylinder is provided with a water inlet pipe and a water outlet pipe, and is characterized in that the cylinder is made of glass fiber reinforced plastic, and the cylinder, the water inlet pipe and the water outlet pipe