1, the principle of universal coverage
Comprehensive 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. The principle of universal application is one of the most basic principles for judging patent infringement. Mainly includes the following forms:
(1) Text infringement
Also known as all technical features coverage, 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.
(2) Infringement of the concept of superior
The accused infringer (product or method) falls into the protection scope of the patent right 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.
(3) Infringement characteristic quantity
If the object (product or method) accused of infringement adds new technical features on the basis of using all the necessary technical features in the patent claim, 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.
(4) Infringement of subordinate patents
The object (product or method) accused of infringement is an improved technical scheme of the existing patented technology, and has obtained the patent right, so it 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.
2. Principle of reciprocity
The concept of "equivalence principle" refers to basically achieving the same function and effect by basically the same means, and technicians in this field can associate the characteristics of infringement by reading the specification, drawings and claims without creative work.
The "equivalence" of the principle of equivalence refers to the equivalence of specific technical features in function and function, rather than the overall equivalence of infringing products and patents. Therefore, the combination of the three technical features of the accused infringing product has basically the same function as the necessary technical feature "elastic cover edge" of this patent claim, and basically the same effect is achieved by basically the same means, which should be regarded as equivalent.
When applying the principle of reciprocity, we should pay attention to the following two points:
(1) For groundbreaking major invention patents, the scope of equivalent protection can be appropriately relaxed; For combined inventions or selective inventions, the scope of equivalent protection can be strictly determined.
(2) The patent claim intentionally omits some necessary technical features, which makes the technical scheme inferior to the patented technical scheme in performance and effect, and this deteriorated technical scheme is obviously caused by the omission of necessary technical features, which shall be deemed to constitute patent infringement.
3. The principle of estoppel
The principle of estoppel is a restriction on the principle of equivalence, which means that the patentee should interpret the claims consistently in the process of patent application and patent infringement trial. The patentee cannot interpret the claims in the patent application documents (including letters with the Patent Office) in a narrow or narrow sense in order to obtain a patent, but in the later patent infringement litigation, in order to make the accused infringing object fall into the scope of patent protection, the patentee can interpret the claims in a broad and narrow sense. For the content that has been promised, recognized or abandoned in the process of patent application, the patentee cannot go back on his word in the subsequent patent infringement litigation.
When applying the estoppel principle, we should pay attention to the following points:
(1) When the equivalence principle conflicts with the estoppel principle in application, that is, when the patentee claims to apply the equivalence principle to determine the infringement and the accused infringer claims to apply the estoppel principle to determine that he does not constitute infringement, the estoppel principle should be applied first.
(2) The content of estoppel must be what has been recorded in the patent documents, including all the documents and letters between the patent applicant and the patent office from the submission of the patent application to the grant of the patent.
(3) The content of estoppel must play a substantial role in granting or maintaining patent rights.
(4) The people's court should not actively apply the "estoppel principle", because if the parties do not claim that the obligee gives up or promises a certain right in the patent application, the court is unaware of it and should not take the initiative to investigate.
Legal basis:
patent law of the people's republic of china
Article 65 Where a patent is exploited without the permission of the patentee, that is, the patent right is infringed and a dispute arises, the parties concerned shall settle it through consultation; Unwilling to negotiate or failing to do so, the patentee or interested party may bring a suit in a people's court or request the administrative department for patent affairs to handle it. When the administrative department for patent affairs finds that the infringement is established, it may order the infringer to stop the infringement immediately. If a party refuses to accept the decision, he may bring a lawsuit to the people's court in accordance with the Administrative Procedure Law of the People's Republic of China within 15 days from the date of receiving the notice of handling. If the infringer fails to prosecute and stop the infringement upon expiration of the time limit, the administrative department for patent affairs may apply to the people's court for compulsory execution. At the request of the parties concerned, the administrative department for patent affairs may mediate the amount of compensation for patent infringement; If mediation fails, the parties may bring a lawsuit to the people's court in accordance with the Civil Procedure Law of People's Republic of China (PRC).
Article 71 The amount of compensation for infringement of a patent right shall be determined according to the actual losses suffered by the obligee or the interests gained by the infringer due to the infringement; If it is difficult to determine the loss of the obligee or the interests of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee. For intentional infringement of patent rights, if the circumstances are serious, the amount of compensation can be determined in accordance with the above method.
If it is difficult to determine the loss of the obligee, the benefits obtained by the infringer and the patent license fee, the people's court may determine the amount of compensation to be more than 30,000 yuan and less than 5 million yuan according to factors such as the type of patent right, the nature and circumstances of the infringement.