How to judge whether there is a patent in infringement?

Here is a brief introduction to the general judgment method of patent infringement. Generally speaking, when judging patent infringement, the following main principles should be applied: 1. Universal coverage principle is the most basic principle and the first principle to judge patent infringement. 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 coverage, that is, the principle of covering all technical features or the principle of literal infringement. 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. That is, if the technical characteristics of the accused infringing product cover all the necessary technical characteristics of the infringed patented technology, the infringement can be established and the infringer needs to bear the tort liability. On the other hand, if the necessary technical features of the object accused of infringement do not completely cover all the necessary technical features of the object accused of infringement, that is, one or more of the necessary technical features of the object accused of infringement are lacking compared with the patented technical features, the infringement is not established. In the following cases, the alleged infringement is considered to completely cover the patent claim. 1. Literal infringement. That is to say, from the literal analysis and comparison, it can be concluded that the technical characteristics of the accused infringer are the same as the necessary characteristics of the patent, and even the written expression of the technical characteristics is the same. 2. The patent claim uses the superordinate concept, and the structure disclosed by the accused infringer belongs to a specific concept in the superordinate concept. In this case, the principle of universal coverage is applied, and the alleged infringer infringes. 3. The technical features of the accused infringer are more than the necessary technical features of the patent, that is to say, compared with the patent claim, the technical features of the accused infringer not only include all the features of the patent claim, but also increase the features. This situation still belongs to infringement, because the principle of universal application means that as long as the accused infringer has all the characteristics of the patent claim, it belongs to infringement, regardless of whether the accused infringer has more characteristics than the claim. In practice, the public may not understand this, and feel that the accused infringer has more features than the claim, and its 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. If the technical features of the object accused of infringement are less than one or more necessary technical features of the patent, it does not constitute infringement. Because the technical scheme composed of the necessary technical features in the claim is an inseparable whole, only when all the necessary technical features in the independent claim are used can it constitute infringement. For example, the realization of the scheme in the independent claim requires four devices or steps: A, B, C and D, while the accused infringement scheme only uses three devices or steps, which indicates that the accused infringement scheme uses fewer technical features to achieve the purpose and effect of the patented technology. This is a technological innovation, which is more advanced than the patented technology and obviously cannot be regarded as infringement. As the means of patent infringement are becoming more and more complicated and secretive, as far as the practice of China courts is concerned, there are fewer and fewer cases in which the alleged infringement is determined only by the principle of universal application. Therefore, when applying the principle of universal application to determine that the accused infringing object does not constitute patent infringement, we should continue to apply the principle of equivalence to determine infringement. Second, the principle of equivalence "the principle of equivalence" is an important principle in the determination of patent infringement, and it is also the principle most used by courts in determining patent infringement. It means that one or more technical features of the accused infringing object (product or method) are literally different from those protected by the patent independent claim, but they can be identified as the same technical features after analysis. In this case, it should be considered that the object (product or method) accused of infringement belongs to the scope of patent protection. 1853 Weinan v Denmark is one of the earliest cases in the United States to determine patent infringement by applying the principle of equivalence. Wei Nan designed a conical carriage which can evenly distribute pressure, and the carriage was patented. Denmark also designed a carriage with an octagonal upper part and a pyramid lower part. Weinan v Denmark. The court of first instance held that the car stipulated in Weinan's patent claim was conical, but the car designed by Denmark was not conical, so the infringement was not established. The Supreme Court of the United States held that the patentee could not create an absolute cone; If the shape of the defendant's carriage is close enough to a cone, and its function and effect are basically the same as that of the patent, the court shall hold that the patent infringement is established. In view of the special circumstances of this case, the court should take special measures to protect the interests of the patentee, which is later called the principle of equivalence. The principle of equivalence has been applied in the practice of patent infringement litigation in China for a long time, but it was not until 200 1 that the Supreme People's Court made a clear stipulation on the principle of equivalence for the first time in Several Provisions on Applicable Legal Issues in the Trial of Patent Disputes [(200 1) Law Interpretation No.21]. Article 17 of this regulation: "The scope of protection of the patent right for invention or utility model mentioned in the first paragraph of Article 56 of the Patent Law shall be subject to the contents of the patent claim, and the description and drawings can be used to interpret the patent right", which means that the scope of protection of the patent right shall be subject to the scope determined by the necessary technical features clearly recorded in the patent claim, including the scope determined by the features equivalent to the necessary technical features. This article clearly stipulates that the scope of protection applicable to patent infringement includes not only the technical features recorded in the patent claim, but also the technical features equivalent to those recorded in the claim, that is, equivalent features. "Equivalent features", also known as equivalents, refer to features that achieve basically the same functions and effects as the recorded technical features by basically the same means and can be associated by ordinary technicians in this field without creative labor. In the object accused of infringement, the technical features that meet the following two conditions at the same time are the equivalent features of the corresponding technical features in the claim: 1. Compared with the corresponding technical features in the claim, the technical features in the accused infringing object have basically the same function and produce basically the same effect 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 patent claims and specifications. At the same time, when applying this principle, we should also pay attention to the following points: 1 Equivalent substitution includes the substitution of different technical features in the claim and the substitution of technical features in the preamble of the claim. Because they are all necessary technical features for inventive purposes. 2. The principle of equivalence is applied to determine whether the specific technical features in the accused infringer (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 infringer (product or method) is equivalent to the technical scheme defined in the independent claim. 3. 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. 4. Determination is equivalent to infringement. 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. 5. To judge whether the technical features in the object (product or method) accused of infringement are equivalent to those in the independent patent claim, the time when the infringement occurred should be taken as the boundary, not the date of patent application or the date of patent publication. 6. For the intentional omission of some necessary technical features in the claim, which makes its 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, the principle of equivalence shall be applied and deemed to constitute patent infringement. The principle of equivalence cannot be applied mechanically, especially in the following two cases: 1. Free existing technology, also known as known technology. In the public domain, anyone has the right to use known technology for free. It cannot be considered that the use of well-known technology will cause equivalent infringement on others' patents. 2. In the patent application, the matters that the patentee intends to exclude should be applied first, that is, the principle of estoppel. In the above two cases, if the principle of equivalence is applied, it will cause excessive protection to the obligee. It will bring unexpected adverse consequences to the public and damage the stability of the law. This completely violates the original intention of the principle of reciprocity. In short, the principle of equivalence is established in the technical judgment of patent infringement, and its purpose is to prevent the infringer from taking obvious equivalent elements or steps to replace the technical features in the patent claim, so as to avoid literal direct infringement and achieve the purpose of evading responsibility. However, due to the diversity and complexity of infringement methods, we should compare and judge carefully in specific applications. Third, the principle of estoppel In the judgment of patent infringement, the principle of estoppel is still an extremely important principle, which limits the principle of equivalence to some extent. When the principle of equivalence conflicts with the principle of estoppel, that is, the plaintiff claims to apply the principle of equivalence to determine that the defendant infringes his patent right, while the defendant claims to apply the principle of estoppel to determine that he does not infringe his patent right, the principle of estoppel should be applied first. Although China's patent legislation has not made clear provisions in this respect, this principle has been widely used in judicial practice. The principle of estoppel means that in the process of patent examination and approval, revocation or invalidation, in order to determine the novelty and creativity of the patent right, the patentee makes a commitment to limit the scope of protection of the patent right or partially give up protection, and thus obtains the patent right. In patent infringement litigation, when applying the principle of equivalence to determine the scope of patent protection, the court should prohibit the patentee from re-incorporating the restricted, excluded or abandoned content into the scope of patent protection. The application of estoppel principle shall meet the following conditions: 1. The commitment or waiver made by the patentee to restrict the relevant technical features must be clearly stated and recorded in the patent documents; 2. Limiting the technical content of the commitment or giving up protection must have a substantial impact on the grant of the patent right or maintaining the effectiveness of the patent right. In China's patent judicial practice, there are more and more cases in which the principle of estoppel is applied, including a typical case:1On April 23rd, 985, the plaintiff applied to China Patent Office for the invention patent of color-changing pen, and1on June 7th, 989, the invention patent was awarded. The independent claim of this patent is: a color-changing pen for color-changing writing tools, which consists of a pen holder, a refill capable of containing colored liquid and a plurality of pen tips communicated with the pen tips, and is characterized in that the pen tips are fixedly installed on the pen tips in the center, so that the pen tips are close to each other without touching, and the pen tips communicated with the pen tips and containing various liquids but not mixed are also fixedly installed in the pen holder. 1990 the defendant began to produce multicolor fountain pens, which consist of pen container, pen holder and refill. There are several water storage cores in the pen holder, one end of which is in contact with the refill, and the other end of the refill is a nib, but the nibs are not in contact, and the gaps between the nibs are filled with adhesive and fixed to each other. According to the original report, the plaintiff was the patentee of the invention of "color-changing pen", and the defendant illegally licensed five units to implement the plaintiff's patented technology without permission, which constituted an infringement of the plaintiff's patent right. In order to safeguard the legitimate rights and interests of the plaintiff, the plaintiff filed a lawsuit, demanding that the defendant be ordered to stop the infringement and compensate for the economic losses. During the trial of this case, the defendant provided the court with a letter written by the plaintiff to the examiner of the patent office during the patent application. According to the letter, the difference between the "color-changing pen" applied by the plaintiff and another patent "multi-head pen" is that the purpose of multi-head pen is that multiple pens are close to each other, and the handwriting written by multi-head pen is a fixed and stable standard color, while the structural function of "color-changing pen" is that several pens on a pen head are close to each other. In view of the patentee's statement on the difference between "color-changing pen" and "multi-head pen", the Patent Office granted the patent right to the "color-changing pen" applied by the plaintiff. It was found through court trial that the technical features of the defendant's "multicolor pen" are exactly the same as those of the "multi-head pen", that is, there are multiple refills in a pen holder, each refill is connected with the nib, and each nib is not in contact with each other, and the gaps between the nibs are filled with adhesive and fixed to each other. Because the plaintiff has clearly stated in the patent application that the patented technology of "multi-head pen" and "color-changing pen" is different, otherwise it is impossible to obtain the patent right. Therefore, according to the principle of estoppel, the court found that the defendant's production of "multicolor pen" did not constitute an infringement of the patent right of "color-changing pen". Generally speaking, the patent specifications, claims and letters submitted by the plaintiff to the Patent Office fully reflect the necessary technical features and technical scope of the patentee's invention and creation. In the future, the patentee should not go back on his word when accusing the third party of infringement, that is, when determining the scope of patent protection and whether it constitutes infringement, the patentee should have a consistent interpretation of the claims, and should not make a narrow interpretation of the claims in the process of patent application and examination in order to obtain the patent right. The patentee should approve or modify the patent documents both in patent application and patent examination. It can be considered that the estoppel principle applies to the following situations: 1. Where the patentee has excluded the technology that is not protected by the claim in the patent application documents, such as claims and specifications, the technology shall not be used as the subject of patent protection scope and patent technology transfer license in future patent infringement litigation, patent transfer and patent implementation license; 2. In order to obtain the patent right, the communication between the patentee and the Patent Office during the application or objection is also an integral part of the patent document, and the promise made by the patent applicant in the above letter is also not allowed to go back on our word; 3. If the patentee warns the infringer after discovering the infringement, during this period, the patentee may also make a request. If the infringer makes some changes to the technology, it does not constitute patent infringement and should also be regarded as the promise of the patentee. If the infringer modifies the technical features according to the patentee's opinion, the patentee may not bring a lawsuit on the grounds that the infringer infringes his patent right, but the promise made to the patentee in this way is only valid for the specific party. The principle of estoppel is a very important review principle in patent infringement litigation, but in litigation, the court has no obligation to review patent files, and will only take the initiative to review some cases when the court thinks it is necessary. Therefore, the burden of proof in this respect is mainly borne by the defendant. The establishment of estoppel principle aims to prevent the patentee from adopting the strategy of backing out, that is, in the process of patent examination and approval, it promises to limit the scope of protection in order to obtain the patent right, or emphasizes how important a technical feature in the claim is to determine its novelty and creativity; In the infringement lawsuit, they tried to cancel the restrictions made, or emphasized that the technical features were dispensable, so as to expand the scope of protection, so as to "benefit both parties". From the above cases, we can know that the estoppel principle is an excellent defense weapon for the defendant to defend the patent infringement in the patent infringement lawsuit. If used well, on the one hand, it can safeguard the legitimate interests of the public; On the other hand, it can well prevent the patentee from abusing the principle of equivalence and avoiding the patentee from arbitrarily expanding the scope of protection of his patent right. Fourth, the principle of repeated designation In judicial practice, the application of the principle of repeated designation has always been controversial, so it is relatively rarely used in court practice. "Redundancy designation principle" refers to the principle that when judging patent infringement, when interpreting patent independent claims and determining the scope of patent protection, the obvious additional technical features (that is, redundant features) recorded in patent independent claims are omitted, and the scope of patent protection is determined only by the necessary technical features in patent independent claims, and whether the accused infringing object (product or method) covers the scope of patent protection is judged. The principle of repeated designation is not clearly stipulated in China's patent law, which is a new principle for judging patent infringement formed by judges exercising discretion. The starting point of recognizing this principle in judicial practice is to prevent the patentee from covering up substantive infringement due to formal errors when writing patent documents. In the determination of patent infringement, 1995 Zhou Lin spectrum patent infringement case is a typical case applying the principle of repeated designation. In this case, the independent claim of the plaintiff's patent has the technical characteristics of stereo playback system. The alleged infringing product has all the other features advocated by the plaintiff except the broadcasting system. The court that accepted the case held that the technical feature (playback system feature) did not have the necessary function and function to complete the invention purpose of this patent. The lack of this function will not affect the function and function of the spectrum therapeutic instrument, nor will it affect the integrity of the whole technical scheme. From this point of view, it is obvious that patent applicants lack experience in writing patents and write unnecessary features into independent claims. In the end, the court found that the accused product did not have this unnecessary technical feature and still constituted infringement. On September 29th, 20001year, the Beijing Higher People's Court issued the Opinions on Several Issues Concerning the Determination of Patent Infringement to the Beijing No.1 and No.2 Intermediate People's Courts (for Trial Implementation). In the identification of patent infringement of invention and utility model, the opinion compares the principle of repeated designation with the principle of universal coverage, the principle of equivalence and the principle of estoppel, and makes detailed provisions in nine articles from 47 to 55. It can be seen that the Beijing court system attaches great importance to and respects the principle of repeated designation. Some scholars have pointed out that the principle of redundant designation or the theory of unnecessary technical characteristics is actually a kind of leniency policy for patentees. In view of the difficulty for the patentee to write proper claims, some technical features that should not be written into independent claims are sometimes written into them, thus excessively limiting its protection scope. If the leniency policy is not adopted, the patentee will be in a situation of "dumb eating coptis chinensis" in some cases. Although most scholars also believe that the principle of redundant designation should be used with caution, it is still necessary to adhere to it at this stage. The supreme judicial organ is still "indecisive" about whether to apply the principle of repeated designation, which makes the prospect of whether the principle of repeated designation can be justified as the legal principle of patent infringement determination in China unpredictable. Faced with such a situation, the Supreme People's Court finally stopped being silent. In a patent infringement dispute case brought for trial in 2005, he pointed out that "our hospital does not approve of lightly applying the so-called principle of repeated designation". Although this statement appeared in a case, it also shows to some extent that the historical mission of the principle of repeated designation in the system of patent infringement judgment in China is coming to an end. Adhering to the principle that "the content of the claims shall prevail" should be the basic principle for judging patent infringement. In view of the principle of repeated designation, the Supreme People's Court clearly pointed out: "All technical features specified by the patentee in the independent claim are necessary technical features, which should not be ignored, but should be included in the comparison of technical features". The tree wants to be quiet, but the wind will not stop. It can be expected that the debate on the principle of redundant designation will continue and will not be subsided by the Supreme Court's statement.