Usual forms of expression of equivalent features include: simple movement of the location of product parts, decomposition or merging of necessary technical features, simple changes in the sequence of method steps, and simple replacement of product parts.
In judicial practice, the conditions for using the principle of equivalents to determine whether there is an infringement are strict rather than lenient, and the objectivity, consistency and predictability of the public are maintained to the greatest extent in applying the principle of equivalents.
The original intention of constructing the principle of equivalents is to prevent the infringed party from evading legal liability for patent infringement through some minor non-substantive changes, and to provide the patentee with effective relief. The determination criterion of the principle of equivalents is The three “modes, functions and effects” are consistent, that is, when comparing the patented invention and the alleged infringement, whether the necessary technology is “basically the same way, obtains the basically the same function, and produces the basically the same effect” is used to determine whether it constitutes The basis for infringement (also known as the three basic principles). In practice, the effects caused by substitution of equivalents are different, and may be better or worse than patented ones. However, as long as the changes are within the scope of achieving the purpose of the invention, they should fall within the basically the same scope of the principle of equivalents. In practice, there are still some changes. An inferior invention will not constitute patent infringement if the purpose of the invention cannot be achieved due to modifications to the inferior invention, or the technical means have undergone fundamental changes. The evolution of the rules of equivalents in determining infringement: In terms of the evolution of the comparison method for determining patent infringement, the principle of all technical features of the invention patent is used to determine whether the infringement is established, that is, each technical feature of an independent claim either appears in the same way in the accused Either the object of the alleged infringement appears in the object of the alleged infringement in a similar manner, and one of the two must be satisfied, otherwise the infringement cannot be determined. In subsequent judicial decisions, all technical features were replaced by the overall equivalent rule. The application of the overall equivalent rule significantly strengthened the protection of the patentee, but the claims were interpreted too broadly, which increased the uncertainty in the application of the equivalent principle and affected the In the interests of the public, the "one-to-one feature correspondence" standard emerged, and there was a major change in the comparison method. The "factor-by-factor comparison method" was used to determine infringement, which was used to balance the interests of the patentee and the public. This method extends the scope of patent protection from the literal definition to all equivalents corresponding to the claims, excluding irrelevant substitutions and simple copying. The standard for equivalent substitution is whether the alleged infringement is produced in substantially the same way, Obtaining substantially the same functions and exerting substantially the same effects, and the similarity of this "mode, function, and effect" is obvious to a person of ordinary skill in the same field. In this case, it can be determined as patent infringement. established.
The standards for correctly understanding the principle of equivalence include both objective judgments and subjective standards. The objective standard is the "Three Consistencies", also known as the "Three Basics", and the subjective standard is "One Ordinary" , objectively analyze whether the alleged infringement and the patented technology use "basically the same means, obtain basically the same functions, and achieve basically the same effects." Subjectively, a person of ordinary skill in the field can judge by reading the claims and description. The obvious comes to mind.
Seeking a balance of interests is the ultimate goal of the main function of legal adjustment of social mechanisms. It not only stimulates the enthusiasm of research and developers, but also prevents the blurring of patent protection boundaries from harming public interests. When determining patent infringement, it emphasizes the use of rights. The demand letter is the standard for determining the scope of patent rights. It is not appropriate to expand the scope of rights arbitrarily. The "three consistency" test standards of equivalent infringement comparison should be correctly used.
The "Three Consistencies" principle is an abstract standard, which provides a general direction for determining infringement. The determination of equivalent infringement is applicable to specific cases. Lawyers need to fully consider the relevant comparative parameters and balance the interests. Under the premise of careful judgment in accordance with procedural rules, specifically, in the comparison process, the cognitive ability of ordinary technicians is used as the comparison standard, the consistency of "method, function, and effect" is used as the comparison parameter, and the subjective judgment of ordinary technicians is used as the error For reference, check to see if they are the same in terms of three consistency.
In actual cases, the understanding of the three consistent standards of "method, function, and effect" varies greatly. Rights holders always interpret it in a broad direction, while infringers do the opposite. Judicial judges also Technology often falls into passivity. After all, technology has its abstract side. Apart from these technologies, there is no other credible method. To a certain extent, the standards for the recognition of the Three Unanimities are empirical, and the Three Ones are empirical. The consensus standard provides judicial officers with a reference that is closer to reality under the current technical conditions, but is not an absolutely accurate standard of judgment.
The principle of three equivalences and unanimity is an imported product for us. Most of our country’s patent protection systems were established under the influence of external forces. Therefore, we must always pay attention to the latest developments, analyze the pros and cons, and correctly delineate the private domain. and the boundaries of protection in the public domain, exploring the concept of the founding principle of equivalence. For high-tech patents that involve the national economy and people's livelihood, major scientific research projects, and provide strong technical support for economic development, a broader interpretation should be given to stimulate the enthusiasm of patent holders to continue to increase investment in science and technology. For technologies introduced to improve backwardness in certain technical fields, , the public disclosure function of the claims to the public should be emphasized, and the claims should be interpreted more strictly to protect public interests, pay attention to the normative nature of judicial rules, reasonably restrain the scope of subjective discretionary interpretation authority, and maintain the fairness of the public domain. Freedom and openness strive for personal interests and social interests, and individual justice and social justice are unified to the greatest extent possible.
Strengthening the protection of patent rights and stopping the abuse of patent rights are a pair of contradictions. Protecting rights is the main aspect of the contradiction, and curbing abuse cannot be ignored. According to the rules of patent interpretation, patents must first be accurately defined scope of rights protection.
The principle of three unities in practical cases: From the patent infringement case between Beijing Company A and Hebei Company B, it can be seen that both companies produce fire-proof rolling shutters, and a company in Beijing produces The high-temperature-resistant fire-proof roller shutter has obtained an invention patent, but the special-grade fire-proof roller shutter produced by a company in Hebei has not obtained a patent. The two companies met at a bidding meeting because they participated in the bidding at the same time. After losing the bid, a company in Beijing used the fire-proof roller shutter produced by a company in Hebei. The lawsuit was filed on the grounds that the rolling shutter constituted patent infringement. Based on the analysis of the patent claims and description, the technical features of the alleged infringing objects were roughly the same. How to determine whether the infringement was infringed became a difficult problem. The plaintiff claimed patent infringement, and the defendant claimed that the technology was well known and the technical features were obvious. Defend on different grounds.
1. The plaintiff sued and claimed that the defendant’s fire-proof rolling shutter infringed on rights other than claim 4 of its patent. It focused on the text of the “claim” and ignored the central content of its expression. Products with the characteristics of "composite composite curtain surface and sandwich core of refractory fiber products" are all included in its protection scope, which expands the protection boundary of patent rights.
Reasonably define the scope of rights protection: Determine the protection boundaries of patent rights based on the content of the patent claims, and provide legal interpretation of the claims. In particular, claims with more complex content can usually be divided into several relatively independent technical features. If the claims are not explained and the text of the claims is simply copied, it is impossible to obtain a clear scope of patent protection. If the technical characteristics of the object of alleged infringement are not analyzed and determined, there will be a lack of comparison objects, or the basis for comparison will be wrong.
The necessary technical solution claimed by the plaintiff's patent is "multi-layered refractory fiber products composited into a rolling shutter". The description explains this technology as "excellent high temperature resistance" and "composite sewing of refractory fiber products with extremely small thermal conductivity" "A fire-resistant fiber blanket sandwich with reinforced high-temperature stainless steel wire or stainless steel wire rope planted in the middle" "Fire-resistant fiber cloth with the core fixed on both sides" (woven with fire-resistant fiber yarn with high-temperature resistant stainless steel wire) ( The fire-resistant fiber cloth of the curtain surface is made of ceramic fiber cloth or high silica cloth, and the other side is made of glass fiber cloth); "High-temperature resistant stainless steel wires can be implanted at equal intervals in the longitudinal direction of the roller shutter curtain surface"; "Fire-resistant fiber cloth" recorded in the instructions Fiber products" include carbon fiber, high temperature resistant stainless steel wire, ceramic fiber, expanded or ordinary glass fiber, high silica fiber, mullite fiber, alumina fiber, zirconia fiber, mineral wool and pure or blended fibers made of them Various yarns, cloths, ropes, blankets, and felts. These materials are usually two or more composites and used together, or they can be used alone. The instructions emphasize that "if ceramic fiber yarns, cloths, and ropes are used, they must be fireproof." Coating or oxidizing the organic fibers at a high temperature of 250-450 degrees. "Therefore, this clear limit should not be exceeded when interpreting the claims. This very clear limit should be considered as a qualifier in this field. After reading the claims and description, ordinary technicians cannot imagine that glass fiber cloth without special treatment or glass fiber cloth without fire-proof oxidation coating can still achieve the purpose of the invention. Therefore, the structure of ordinary glass fiber cloth should be excluded. It is outside the scope of patent protection, otherwise it would be equivalent to deleting "made from fiber yarn embedded with stainless steel wire" and "must be oxidized or coated with a fire-retardant coating" from the independent claims.
2. It is to identify the corresponding technical characteristics of the alleged infringement.
From the perspective of the necessary technical features of claim 1 of the patent involved, the plaintiff’s patent adopts “functional features limited to fire prevention and heat insulation.” When interpreting this claim, the description in the description should be taken into consideration The specific implementation method. The description states that the purpose of the invention patent involved in the case is to overcome existing shortcomings and provide a fire-resistant fiber composite curtain surface for fire-resistant and heat-insulating rolling shutters with long fire resistance limit time, good thermal radiation resistance, good high-temperature strength, and stable chemical properties. From the analysis of the claims and the description, the plaintiff's invention is based on the above basic method and uses the backside temperature rise as the functional limit for determining the fire resistance limit as a necessary technical feature. The so-called functionally defined technical features mean that the patent claims do not use structural features or method step features to limit the invention, but use the role, function or effect produced by the parts or method steps in the invention. invention. In the infringement determination, the functionally limited technical features should be interpreted as covering only the specific implementation methods or steps recorded in the specification. Based on the patent claims and the explanation of the specification, the content of the technical features should be reasonably limited. Before determining whether the infringement is infringement, it is necessary to Identify and define which technical features are necessary and which are non-essential technical features or general technologies. In this case, when determining whether there is infringement or not, the understanding should not be expanded to include that all technologies for manufacturing "fire-resistant fiber composite roller shutters" constitute infringement.
The analysis found that the patent specification involved in the case specified the functional effect of "the temperature rise on the back side as the determination of fire resistance limit" for the "fire-resistant fiber composite roller shutter". The instructions further define "refractory fiber products" as "refractory fiber blankets with reinforced high-temperature stainless steel wires planted in the middle" and "refractory fiber cloth made of refractory fiber yarns with high-temperature stainless steel wires in the middle on both sides." Describe the specific implementation method of this technical solution: If ceramic fiber yarn, cloth, and rope are used, they must be fire-resistant coatings or the organic fibers must be oxidized at a high temperature of 250 degrees to 450 degrees. The roller blinds are also made of excellent fire resistance. It is sewn with high-performance high-temperature resistant sewing thread or high-temperature-resistant stainless steel wire. High-temperature-resistant stainless steel wire or other high-temperature resistant reinforcing materials can be added to the yarn.
It can be seen that the necessary technical features of the plaintiff's invention patent are "the realization method of "refractory fiber product sandwich and refractory fiber cloth made of refractory fiber yarn with high temperature resistant stainless steel wire in the middle located on both sides, and the temperature rise on the back side to set the fire resistance limit" "Determined to be functionally limited", the plaintiff confirmed that the alleged infringing product did not fall within its claim 4: "The fire-resistant fiber cloth is made of fire-resistant fiber yarns with high-temperature resistant stainless steel wires." It can be seen from the description that the plaintiff's claim 4 is based on the necessary technical features of "the temperature rise of the back surface as the fire resistance limit determination" and "the fire-resistant fiber cloth for fixing the fire-resistant surface and the fire-facing surface of the refractory fiber product core". If this item is Excluded from the claim, the plaintiff’s patented technology cannot realize its function of “the temperature rise on the backside serves as the fire resistance limit”. The corresponding technical features of the accused infringing product are not identical or equivalent to the plaintiff’s claims 1-3, 5-9. The defendant’s technical solution for special-grade fire-resistant roller shutters is “glass fiber, galvanized steel plate, metal mesh” Composite, the structural features are not the same as described in the plaintiff's instructions: "Fire-resistant fiber cloth woven from fire-resistant yarns coated with fire-resistant paint and embedded with high-temperature stainless steel wires", "High-temperature stainless steel wires implanted at equal intervals in the longitudinal direction", "Using ceramic fiber yarns" , cloth, and rope, they must undergo fire-retardant coating or be oxidized at a high temperature of 250 degrees to 450 degrees." The defendant's other alleged infringing product, the "smoke barrier", is made of "glass fiber cloth, ceramic fiber blanket, It is composed of five layers of steel wire rope, ceramic fiber felt, and glass fiber cloth. The "ceramic (coal gangue) fiber products" and the "glass fiber cloth" on the surface are different from the "special treatment of oxidation or coating" recorded in the plaintiff's patent specification. "Features and the material of "fire-resistant fiber cloth woven with stainless steel wire fibers" are different in function and efficacy from the plaintiff's patented technology "the backside temperature rise is used as a condition for determining the fire resistance limit", and do not constitute any part of the plaintiff's patented technology. The smoke barrier is composed of glass fiber cloth without steel wire, ceramic fiber blanket without oxidation treatment, gangue fiber felt, galvanized metal rope, and glass fiber cloth. The "fiber cloth" on the surface of the smoke barrier is not It is made of refractory fiber yarn with high-temperature resistant stainless steel wire and an additional layer of coal gangue fiber felt, which does not fall within the scope of the plaintiff's claims.
3. Compare the defined scope of patent protection with the alleged infringement, and make an analysis and determination of infringement or non-infringement. None of these three steps can be omitted.
The prerequisite for determining patent infringement is to reasonably determine the boundaries of patent rights, insist on ensuring the balance of public interests, accurately define the scope of patent protection, and maintain the market order of fair competition and the legitimate rights and interests of citizens. Utilize judicial policies and legal application techniques to properly handle the relationship between appropriate protection, strictly grasp the applicable conditions for patent infringement, avoid abstract protection and prevent over-application of infringement.
The alleged infringing goods were produced in accordance with national standards. The relationship between patent rights and national standards also emerged in the case. This requires attention, not only to prevent the abuse of patent rights by using standards, but also to benefit Form a batch of core technical standards in key technical fields, and provide corresponding legal relief for cases involving patent infringement disputes that are incorporated into national, industry or local standards, and determine the nature of the behavior based on industry characteristics, the current status of standard formulation and the specific circumstances of the case. For the specific situation of the construction industry, there is a case answer regarding the standard patent infringement determination and royalty payment methods for the construction industry. If the patentee participates in the formulation of the national standard and does not specify a patent protection statement, it will be deemed that the enterprise that can implement the national standard is free of charge. use.
Based on the three consistent principles of method, function, and effect, the different structures in the patent in this case cannot simply be considered to be just a difference in increasing or decreasing the number of layers, but rather to the functional effectiveness and index of the fireproof roller shutter components. Fixing has different physical effects. The fire-proof rolling shutter is sandwiched with metal plates and metal mesh. The technical effect in enhancing radiation protection, heat source fire protection, etc. should be better than the patent effect. It should be considered that the addition of the structure cannot have the same effect as that without the addition. Basically the same means achieve basically the same effect, so the allegedly infringing product does not have the same characteristics as the patented corresponding technology, let alone the same characteristics. Therefore, the allegedly infringing products do not fall within the scope of patent protection.