Keywords: the principle of patent equivalence, the scope of patent equivalent claims
German cases show that the equivalent protection scope of patents should be extended to technologies with different components but the same substance as those recorded in the claims. German courts have established the applicable standards of positive equivalence and negative equivalence in the application of patent equivalence principle. Among them, the essential elements of the idea of invention technology, the elements of easy replacement of association and the theory and practice of the defense of existing technology have important enlightenment to the perfection of China's patent system.
The principle of patent equivalence refers to the principle of pursuing substantive protection of patent technology ideas beyond the semantics of patent claims, so as to crack down on users who make non-substantive amendments to patent claims. This principle is an important theoretical basis for judging patent infringement. Generally speaking, the alleged infringement does not constitute the same infringement, and it can be judged by applying the principle of patent equivalence to determine whether it constitutes infringement. However, the application of the principle of patent equivalence generally involves two basic problems: first, how to establish the judgment standard that the accused infringing object is the same as the invention right technology; Second, what is the negative standard other than the substantially same standard, that is, the defense reason. The purpose of this paper is to study the application of the principle of patent equivalence in German courts, so as to improve the relief system of patent infringement in China.
First, the establishment and development of the principle of patent equivalence in the current German law.
Article 14 of the current German Patent Law stipulates that the scope of protection of a patent or patent application shall be determined according to the content of the claim, but the description and drawings can be used to interpret the claim. [1] According to this article, the scope of patent protection is determined by the content of the claim and the specific inventive concept expressed in the claim. [2] To this end, the interpretation of the claims has become the only way and core work to determine the scope of protection. Generally speaking, on the one hand, it is necessary to explain the meaning of the terms in the claims, [3] and its meaning range is determined by ordinary technicians in the field according to the records in the specification, the illustrations in the drawings and general professional knowledge; [4] On the other hand, it is necessary to expand the interpretation scope of the claims to evaluate the application of the patent right of equivalent infringement, that is, the principle of patent equivalence.
The German Supreme Court has established the application of the principle of patent equivalence under the current law in several cases, and holds that the judgment of patent equivalence is based on the comparison between the effect of specific technical features in the claim and the effect of corresponding substitute means (corresponding substitute technical features) in the accused infringing object. If the two effects are the same or basically the same, the accused infringing object with the same or basically the same effect is included in the scope of patent protection. [5] At the same time, it is also required that the equivalent substitution method is easy to be associated with ordinary technicians in this field, and the identity between the effect of combining the equivalent substitution method with other features in the alleged infringement and the effect achieved by the patented invention is also easy to be identified. [6] Later, the German Supreme Court added the third requirement for the application of the principle of patent equivalence in case law: the equivalent scheme based on the substantive meaning of the invention technology thought. [7] It can be seen that under the current law, Germany has completely abandoned the general idea of invention in the past trisection theory, and no longer adhered to the division of direct equivalence and indirect equivalence, but established a unified standard for judging equivalence.
Second, the applicable standard of the patent equivalence principle.
Most cases in Germany show that the scope of application of the principle of patent equivalence should be extended to technologies that are different from but essentially the same as those recorded in the claims. However, the scope of application of the principle of patent equivalence is beyond the meaning of the claims, and it is also out of the necessary examination of the patent office. In the application of the principle of patent equivalence, German precedents have established two important conditions: one is that the equivalent interpretation of claims must take into account the publicity of claims, and the other is that the equivalent scope of its extended interpretation should also be patentable. The former requires that the equivalent interpretation of the claim should satisfy the predictability generated by the third party's trust in the openness of the claim, and establish the corresponding positive application standard of the patent equivalence principle; The latter requires that the scope of equivalence to be expanded should not be extended to technologies that cannot be patented, so the necessary and negative application standards of the patent equivalence principle should be established in the equivalence interpretation.
(A) the positive criteria for judging the application of the principle of patent equivalence
The positive judgment standard of patent equivalence principle refers to the judgment standard of expanding the interpretation of claims in the equivalent interpretation of claims. Its goal is to break the shackles of specific terms or specific technical content in the claims and expand the scope of patent protection. The basic idea of German cases on this issue is that the scope of equal protection of patents can and should be extended to technologies that are basically the same as those recorded in the claims and can be easily associated with by third parties from the records of the claims. The positive criteria for judging the application of the principle of patent equivalence include the following three elements.
1. Same effect
The so-called same effect means that the substitute means (technical features) used in the alleged infringement are different from the corresponding means (technical features) recorded in the claim, but they have the same or substantially the same effect in solving the same technical problem of the patented invention. It can be seen that the same effect focuses on the identity of technical problems and technical effects. It must be pointed out that the judgment of the same effect inevitably involves the functional comparison between the substitute means in the alleged infringement and the corresponding technical means in the patented technology. Because compared with the corresponding means recorded in the claims, the equivalent substitute means should have the same technical function and achieve the same technical effect. [8] If we compare the same effect with the triple test standard of function-mode-effect of American equivalent technology, we can find that the former is much looser because of the lack of constraints of mode elements.
1986 On April 29th, the German Supreme Court affirmed the application of the principle of patent equivalence in the current patent law, and pointed out that the scope of patent protection after 1978 1 should be determined according to the contents of the claims determined by interpretation when it comes to the determination of equivalent infringement. When determining the scope of patent protection, we should also consider the significance of the invention that ordinary people in the field can recognize. The judgment of equivalence lies in whether ordinary technicians can use their professional knowledge to find other technical means with the same effect to solve the same technical problems of inventions based on the inventions defined in the claims. That is to say, if other means with the same effect can be used to solve the task of patented invention, then such other means are usually included in the scope of patent protection. [9] This case is a landmark case of German patent equivalence principle. Its importance lies in that the German Supreme Court no longer insists on dividing equivalence into obvious equivalence and non-obvious equivalence, while giving up the general concept of invention conception, it has created a unified equivalent scope. Subsequently, the German Supreme Court also held in the case of heavy metal oxidation catalyst 1988 that when judging whether the substitute means in the alleged infringement constitute equivalent means, the key work is to see whether ordinary technicians in this field can understand the technical means different from the patent from the perspective of claim expression and whether different technical means have the same effect in solving patent tasks after investing their professional knowledge and referring to the patent specification and its drawings. [ 10]
2. Easy to associate
The so-called easy association means that ordinary technicians in this field can associate the accused infringer's alternative means on the patent application date (or priority date) with their own professional knowledge, skills and experience and the existing technology that can be started on the patent application date (or priority date), and can also realize that the equivalent alternative means of the accused infringer have the same effect, that is, the accused infringer has the same technical effect. When judging the difficulty of association, ordinary technicians do not need creative thinking, but can think of equivalent alternatives based on relevant knowledge or simple implementation.
The German Supreme Court also pointed out in the judgment of the roadside stone profile case that when determining the equivalent protection scope of the patent filed after 1978 65438+ 10/0/,ordinary technicians in this field should also think of alternatives with the same effect in the alleged infringement from the contents of the patent disclosure. [1 1] Subsequently, the German Supreme Court also pointed out in its judgment on the case of ion separation device 1988 that when applying the principle of patent equivalence, it is (only) based on the fact that the accused infringer has the same function as the patent in this case and has a decisive invention idea consistent with the patent to judge whether the equivalent infringement is insufficient. It is necessary to determine the significance of the claim to ordinary technicians in this field, and also to see whether ordinary technicians can think of a solution with the same effect as the patent in the alleged infringement by thinking about the explained claim, so as to solve the task of invention.