3 1. When determining patent infringement, the principle of universal coverage is applied to determine that the object (product or method) accused of infringement does not constitute patent infringement, and the principle of equivalence is applied to determine infringement.
32. The principle of equivalence means that one or more technical features of the object (product or method) accused of infringement are literally different from those protected by the patent independent claim, but after analysis, they can be identified as the same technical features. In this case, it should be considered that the object (product or method) accused of infringement belongs to the scope of patent protection.
33, the scope of protection of the patent right also includes the scope determined by the technical features equivalent to the necessary technical features in the patent independent claim.
34. Equivalent features are also called equivalence. The technical features of the accused infringing object (product or method) that meet the following two conditions at the same time are the equivalents of the corresponding technical features in the claim:
(1) Compared with the corresponding technical features in the claims, the technical features in the alleged infringement act have basically the same functions and have basically the same effects by basically the same means;
(2) For ordinary technical personnel in the field to which this patent belongs, technical features that can be associated without creative labor by reading the claims and instructions.
35. Equivalence should be a substitute for specific technical features, not a substitute for complete technical solutions.
36. Equivalent substitution includes the substitution of different technical features in the claim and the substitution of technical features in the preface of the claim.
37. To judge whether the technical features in the object (product or method) accused of infringement are equivalent to those in the independent claim, the time when the infringement occurred should be taken as the boundary.
38. The principle of equivalence is applied to determine whether the specific technical features of the accused infringing object (product or method) are equivalent to the corresponding necessary technical features in the patent independent claim, but not whether the overall technical scheme of the accused infringing object (product or method) is equivalent to the technical scheme defined in the independent claim.
39. The determination of equivalent infringement should be based on the professional knowledge level of ordinary technicians in the patent field, not the professional knowledge level of senior technical experts in this field.
40, equivalent infringement judgment, for groundbreaking major invention patents, determine the scope of equivalent protection can be appropriately relaxed; For combined inventions or selective inventions, the scope of equivalent protection can be strictly determined.
In claim 4 1., if individual necessary technical features are intentionally omitted, so that its technical scheme is inferior to the patented technical scheme in performance and effect, the principle of equivalence shall be applied, and this deteriorated technical scheme is obviously caused by the omission of necessary technical features, which shall be deemed to constitute patent infringement.
42. When determining patent infringement, the principle of equivalence should not be applied to determine that the object (product or method) accused of infringement belongs to the scope of patent protection under the following circumstances:
(1) The technical scheme accused of infringement belongs to the known technology before the filing date;
(2) The technical scheme accused of infringement belongs to a conflicting application or a prior patent application;
(3) The technical features in the object of alleged infringement belong to the technical content that the patentee explicitly excludes patent protection in the process of patent application, authorization examination and maintaining the effectiveness of patent rights.