I. The principle of universal coverage
The principle of universal application is one of the most basic principles, and it is also the first principle to judge patent infringement.
The so-called universal coverage principle (also known as the principle of covering all technical features or the principle of literal infringement) means that the technical features of the accused infringing product or method (hereinafter referred to as the accused infringer) correspond to and are the same as all the technical features recorded in the claim, or the technical features of the accused infringer add some other technical features on the basis of all the technical features recorded in the claim, so it can be concluded that there is infringement.
Legal basis:
Article 17, paragraph 1, of the Provisions of the Supreme People's Court on the Applicable Law in the Trial of Patent Disputes (adopted in 200 1 3 and revised in 20 15 respectively) and Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Applicable Law in the Trial of Patent Infringement Disputes.
Disadvantages:
Too rigid in the literal meaning and scope of claims often fails to provide effective and adequate legal protection for patentees.
Second, the principle of reciprocity.
The principle of equivalence originated in the United States, and has been widely recognized by the United States, Europe, Japan, South Korea and other major countries/regions in the world. It is an important principle for judging patent infringement and the most widely used principle by courts. Some people say that this is a revision of the principle of universal coverage.
The so-called equivalence principle means that although the technical features of the object accused of infringement are different from all the necessary technical features recorded in the claims, if this difference is immaterial, the former only realizes the basically same function and achieves the basically same effect by basically the same means as the latter, and ordinary technicians in this field can think that there is an infringement without the characteristics of creative labor, that is, equivalent characteristics.
Legal basis:
Article 59 of the Patent Law of People's Republic of China (PRC) (revised in 2008); Article 17 of the Provisions of the Supreme People's Court on the Applicable Law in the Trial of Patent Dispute Cases; Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Patent Infringement Disputes.
Disadvantages:
Abuse of rights caused by the difficulty in uniformly applying standards.
In the application of the principle of equivalence in the determination of patent infringement, the first problem to be faced is the determination of the object of comparison, which has gone through the process from overall comparison to technical feature comparison one by one. There are two main views on the theory of contrast object in academic circles, namely, the theory of overall equivalence and the theory of all technical characteristics.
1. Global Equivalence Theory
The theory of overall equivalence refers to whether the accused infringer and the patented technology scheme are equal as a whole when judging the equivalent infringement.
2. Theory of all technical characteristics
All technical features are also called element by element, focusing on the comparative analysis of the technical elements in the claims. The theory holds that all technical features in independent claims cannot be ignored. If some elements of the alleged infringement are different from the corresponding technical features recorded in the right, but their functions, means and effects are basically the same, it can be judged as equivalent infringement.
The theory of all technical characteristics is stricter than the whole equivalent theory, which avoids the uncertainty brought by the expanded interpretation of the claims, thus improving the operability of the judgment of equivalent infringement. Both the United States and EPC adopt the theory of technical feature equivalence. In China's judicial practice, for example, the court of first instance adopted the principle of overall equivalence in the patent infringement dispute case of "intracranial hematoma crushing puncture needle", while the court of second instance corrected the practice of the court of first instance and adopted the theory of all technical characteristics.
Third, the principle of estoppel.
The principle of estoppel originated from the equity law in England and was gradually absorbed by the common law, which became an important principle that the parties should follow in the adversarial legal proceedings such as litigation.
The broad interpretation principle of estoppel means that inconsistent and different interpretations are not allowed to be made to the technical scheme from the date of publication, whether in the process of establishing rights or in the rights protection and infringement litigation after the establishment of rights. In a narrow sense, the estoppel principle refers to the patentee's commitment to limit the scope of protection of patent claims or partially give up protection by means of written statement or modification of patent documents in the process of patent approval, revocation or invalidation, and thus obtain 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 content that has been restricted, excluded or abandoned into the scope of patent protection.
The principle of estoppel is considered as an important restriction on the principle of equivalence. 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.
Legal basis:
Article 6 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Patent Infringement Disputes, which was implemented on June 20 10, states: The people's court shall not support the technical scheme abandoned by the patent applicant and the patentee by modifying the patent claim, specification or opinion statement in the patent authorization or invalidation procedure, if the obligee has included it in the scope of patent protection in the patent infringement dispute case.
Fourth, the principle of donation.
The United States is the first country to apply the principle of donation. In the classic case "Miller v. Brass Company" heard by the US Supreme Court 188 1, the patentee disclosed the structure of two lamps in the specification, but only requested to protect one of them. After more than ten years, the patentee found that another structure was better, so he wanted to seek protection for this structure through the reissue procedure. The United States Supreme Court did not support the patentee's request. The court pointed out in the judgment that "if a device needs protection, but other devices that are obvious from the patent surface don't need protection, from a legal point of view, those that don't need protection will be donated to the public unless they request re-release in time and prove that other devices don't request protection because of negligence, accident or error."
Legal basis:
Article 5 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Patent Infringement Disputes, which came into effect on June 20 10, states: In a patent infringement dispute case, if the right holder brings it into the scope of patent protection, the people's court will not support the technical scheme that is only described in the specification or drawings but not recorded in the claim.
Disadvantages:
At present, the judicial practice of this principle in China is very difficult due to the dual shortcomings of legal theory and judicial practice.
Five, the principle of preemptive right
The principle of preemptive right, that is, the right of defense first, comes from the principle of fairness of law.
Legal basis:
Article 69 of the Patent Law: Anyone who has manufactured the same product, used the same method or made necessary preparations for manufacturing and using it before the date of patent application, and continues to manufacture and use it only within the original scope, shall not be regarded as infringing the patent right.
In today's patent infringement disputes, the accused infringer often takes the right of first use as a defense. Therefore, there are strict conditions for the application of preemption principle.
Time factor:
The disputed technological achievement successfully developed by the first person and the act of preparing to implement the technological achievement shall be before the date of filing the patent application by the patentee.
Source factors:
Controversial technological achievements should be independently researched and developed by themselves or obtained through other legal channels.
Scope of use factors:
The continued use of technical achievements by pre-employed personnel shall be carried out within the original scope, and the scope of use shall not be expanded. The so-called "original scope" includes two parts: the scope of "using" the technical achievements of the competition and the scope of "necessary preparation" for using the technical achievements of the competition.
Six, the implementation of the known prior art non-infringement principle
Implementing the principle of non-infringement of known prior art, that is, the defense of known prior art and the defense right of known prior art, is a newly added system when China revised the patent law in 2008. "Existing technology" refers to the technology known to the public at home and abroad before the filing date.
When judging whether the accused infringing technology "belongs" to the existing technology, the novelty judgment principle similar to that in patent authorization is generally adopted. First of all, the principle of novelty comparison alone should be applied, and it is not allowed to combine several existing technologies for comparison. If an existing technology is completely consistent with the alleged infringing technology, the existing technology defense is established. Secondly, if there is a difference between the alleged infringing technology and the existing technology, but the difference is only "directly replacing common means (such as replacing bolts with screws)" or "common knowledge in the technical field", the defense of the existing technology should also be regarded as established.
The burden of proof of the prior art defense shall be borne by the party who raises the defense. If it is published, the parties concerned shall provide a publication with a clear publication time; For the disclosure of the use, the parties may prove the technical characteristics and disclosure time of the relevant existing technology through notarization and other means. In short, the defender should not only prove that the characteristics of the existing technology are the same as those of the alleged infringing technology, but also prove that the related existing technology was published before the patent application date.
Legal basis:
Article 62 of the Patent Law revised in 2008: In a patent infringement dispute, if the accused infringer has evidence to prove that the technology or design he implemented belongs to the existing technology or design, it does not constitute patent infringement.
Seven, the principle of compromise
Compromise principle is the principle of explaining the scope of patent protection for inventions and utility models. There are two representative ways to understand and interpret claims or determine the scope of patent protection in the world. One is the central limit system represented by Germany, and the other is the peripheral limit system represented by Britain and America. The central restriction system is unfair to the public, while the peripheral restriction system is not conducive to protecting the patentee. In order to make up for the shortcomings of the above two methods, many countries in the world, including Germany, which adopts the central restriction system, and the United States, which adopts the peripheral restriction system, have turned to the compromise principle.
Legal basis:
Paragraph 1 of Article 59 of the Patent Law: The scope of protection of the patent right for invention or utility model shall be subject to the content of the claim, and the content of the claim may be illustrated by the specification and drawings.
Article 7 of the Guide to Determining Patent Infringement of Beijing Higher People's Court clearly stipulates the principle of compromise: when interpreting the claim, the technical content recorded in the claim shall prevail, and the scope of patent protection shall be reasonably determined according to the description and drawings, the existing technology, the contribution of the patent to the existing technology and other factors; The scope of patent protection can neither be confined to the literal meaning of the claims, nor can it be extended to what ordinary technicians in this field can associate by reading the specification and drawings before the patent application date.
Eight, the principle of inferior invention
The so-called inferior invention refers to: "The controlled object can basically achieve the invention purpose of the patented technology by replacing the individual necessary technical features of the patented technology with simple technical features and implementing them with other necessary technical features, but it will deteriorate the patented technical scheme to a certain extent and reduce its technical effect."
With the diversification of infringement methods, it is very important to understand inferior inventions and clarify the application of law. The attitudes of the United States and Britain on whether inferior inventions constitute infringement are diametrically opposed, and there are also disputes and different opinions in the theory and judicial practice of patent law in China. Among them, the main reasons for claiming that inferior inventions do not constitute infringement are as follows: when applying for a patent, the patentee hopes to make his patent protection scope as large as possible and at the same time pass the examination smoothly; Or ensure that the patent right will not be declared invalid in the future. Generally, the patentee will write the technical scheme with good effect into the claim, and the technical scheme with poor effect will be abandoned. However, when judging infringement, it is obviously unreasonable to advocate legal protection for the poor technical scheme abandoned by the patentee. Moreover, the technical scheme with poor effect can be eliminated through the market, and the laws of the market should be applied. It cannot be blocked by judging infringement, and it is unfair to the public. At present, the Guide to Trial of Patent Infringement issued by Beijing Higher People's Court clearly supports that inferior inventions do not constitute infringement. Obviously, at least in Beijing, this principle is applicable.
Legal basis:
Article 1 17 of the Guidelines for Determining Patent Infringement published by Beijing Higher People's Court on 20 13: The alleged infringing technical scheme omits individual technical features in the claim or replaces the corresponding technical features in the claim with simple or low-level technical features, and abandons or significantly reduces the performance and effect corresponding to the technical features in the claim to form a deteriorated technical scheme, which does not constitute patent infringement.
The redundancy designation principle and reverse equivalence principle to be introduced next, one is leaving and the other has not yet arrived!
Nine, the principle of redundant designation
The Supreme Court's Provisions on the Applicable Law in the Trial of Patent Disputes was revised for the second time, changing the scope of patent protection in the first paragraph of Article 17 from "necessary technical features and equivalent features" to "all technical features and equivalent features". This not only conforms to the principle of universal coverage stipulated in Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Disputes, which was promulgated and implemented in 2009, but also is considered as the end of the principle of repeated designation in judicial practice.
The principle of redundant designation is also called "the principle of eliminating unnecessary technical features". Its basic meaning is that when interpreting the independent claim and determining the scope of patent protection, the obvious additional technical features recorded in the independent claim (that is, redundant features) are omitted, and the scope of patent protection is determined only by the necessary technical features in the independent claim, so as to judge whether the accused infringing object (product or method) covers the scope of patent protection. If the accused infringing object of the defendant does not contain this redundant feature, the defendant can still be identified as infringing.
Whether this principle should be applied to the determination of patent infringement has different opinions all over the world. The British court recognized this principle, but held that when applying this principle, the court must weigh the role of this feature in the claim and infer the author's intention to add this technical feature to the claim. After years of ambiguity and vacillation, the United States finally explicitly denied this principle in the Hilton case.
At present, the principle of repeated designation is no longer applicable in China's patent judicial trial. Therefore, when writing the claims of invention patents and utility model patents, patent applicants should reasonably determine the scope of patent protection according to the specific conditions of the existing technology, and avoid writing unnecessary technical features into independent claims in order to obtain better authorization prospects.
X. reverse equivalence principle
The principle of reverse equivalence, also known as the principle of reverse equivalence, has not been established in China, but with the development of science and technology and law, this principle has been gradually paid attention to in the field of legal theory and judicial practice.
The so-called reverse equivalence principle means that when the accused infringer reproduces all the technical features recorded in the patent claim, if the accused infringer has fundamentally changed compared with the patented technology and realized the same or basically the same function or effect as the patented technology in a way different from the essence of the patented technology, it should not be regarded as infringement.
The principle of reverse equivalence was established in American judicial practice, which was first seen in the case of Westinghouse v. Boyden Power Brake Company ruled by the Supreme Court of the United States. In this case, the court held that Boyden's equipment belongs to the literal scope of Westinghouse's patent, but even so, the court refused to establish the infringement. "... even if the object of the alleged infringement is not within the literal scope of the claim, the accusation of infringement may still be established, and vice versa. The patentee can prove that the alleged infringement belongs to the literal scope of the claim, but if the alleged infringement has undergone major changes in principle, making the literal scope of the patent claim inconsistent with the patentee's actual invention, the alleged infringement does not belong to the protection scope of the patent right and does not infringe the patent right. This expression has also become the original prototype of the principle of reverse reciprocity.
Take nanotechnology as an example. Researchers at Cornell University have developed a "nano guitar". The strings of this guitar are drawn by laser, and the width is only about 100 atoms, which can produce timbre that is 17 times higher than human hearing frequency. If there is an ordinary lyre before this, and its claim is very extensive, and the size of the instrument is not limited, the obligee is likely to claim that the above-mentioned "nano guitar" is equivalent to its product, in other words, the technical scheme using nanotechnology is likely to form a literal equivalent with the traditional similar technical scheme. But this is actually a completely different technical solution. Nano-scale instruments have incredible micro-dimensions, and their electronic structure, conductivity, sensitivity, melting point and mechanical properties are obviously different from previous similar products. It can be seen that with the progress of science and technology, the application of the principle of reverse equivalence may not be far away.