Apply the principle of equivalence
The principle of conceptual equivalence (hereinafter referred to as "the principle of equivalence")
It means that in patent infringement, although a technology suspected of infringement is not literally within the scope of patent claim, if the accused product or method has basically the same function as the patent claim and has basically the same effect in basically the same way, it should be judged that the infringement is established. This principle appeared relatively late in China. Although the principle of equivalence has been recognized in judicial practice, the patent law and other relevant laws and administrative regulations have not clearly defined the principle of equivalence, which requires us to grasp the essence of the principle of equivalence in practice and apply it correctly.
Second, the application of the principle of equivalence in China.
The doctrine of equivalence has already made great progress in developed countries in the United States, but as a formal principle for judging patent infringement, it appeared relatively late in China. The earliest legal basis of the principle of equivalence in China is the Provisions of the Supreme People's Court on Applicable Legal Issues in the Trial of Patent Disputes promulgated by the Supreme People's Court on June 1 2006. Article 17 of this regulation clearly stipulates that "the scope of protection of the patent right for invention or utility model referred to in the first paragraph of Article 56 of the Patent Law shall be subject to the content of the claim, and the description and drawings can be used to interpret the claim". The scope of protection of the patent right shall be determined by the necessary technical features clearly recorded in the claims, including those equivalent to the necessary technical features. The second paragraph of article 17 of this regulation stipulates that "the principle of equivalence refers to the features that can achieve basically the same function and achieve basically the same effect as the recorded technical features by basically the same means, and can be associated by ordinary technicians in the field without creative labor."
To judge whether the principle of equivalence is applicable, the most important thing is to judge whether it is beyond the scope (the principle of equivalence itself tends to expand the scope of patents)