Unit ｜ constant ministry of career of attorney office intellectual property
Yang Qingyu of group of major of author ｜ patent tort
Douwei of complier ｜ constant believes operation group
Introductive
Be equal tort, be show program of technology of tort be appealinged to has or the corresponding technology feature in feature of an above technology and right requirement looks from literal not identical, but belong to be equal feature, ought to maintain program of technology of tort be appealinged to to fall into patent to protect range. Exclusive law setting is equal the purpose of the principle depends on preventing other to pass avoid literal tort, borrowed patent technology and obtain be not allowable profit, and the case that will make blame materiality change to patent technology program is maintained for tort, in order to protect the legal interest of patent person.
One, be equal the legal provision of the principle
" top people court encroachs patent dispute case to use law about cognizance the explanation of a certain number of problems " the 7th the 2nd section provision: "Technical program includes tort be appealinged to to ask with the right all technology feature of account is same of the technical feature that perhaps is equal, the protective range that people court ought to hold his to fall into patent " .
" top people court about trying a certain number of regulations of problem of statute of comfortable use of patent dispute case " the seventeenth be equal the 2nd times the feature is to point to the technical feature with place account with basic and same measure, realize basic and same function, achieve basic and same result, the feature that and the common technology personnel of competence region need not pass creativity labor can associate.
2, be equal principle the applicable regulation in practice
Case one:
City is promoted to connect casting in appropriate fireproof material factory limited company and east wind of city of in relief spring are fireproof material is finite dispute of liability company patent tort in one case, right of experience case patent asks the feature of 5 " apparent pore rate is more than 10% " whether is the apparent pore rate with product of tort be accusinged formed for the technical feature of 12.9% be equal the controversy focus that is this case.
The court thinks: 1, because experience case is patent,used " do not be more than 10% " the scale demarcate with this kind of very clear dividing line, and the apparent pore rate that clear put down in writing originates the 3 sample data that makes brick of extraction mouth of Mo Laishi casting originally in manual executive exemple is 6 ％ , 2 ％ , 4 ％ respectively, ought to think, only apparent pore rate is not more than the Molaishi of 10% the technical effect that patent of case of experience of implementation of ability of casting mouth brick narrates. 2, the evidence that submits according to both sides, the brick of mouth of Mo Laishi casting that the brick of mouth of Mo Laishi casting that apparent pore rate is not more than 10 ％ and apparent pore rate are 12.9 ％ leads the existence on numerical value to differ apparently in apparent pore not only, rate of the heatproof shake sex that can bring about a product from this, intensity, heat conduction have notable difference, the brick of mouth of Mo Laishi casting that apparent pore rate is 12.9 ％ although intensity and heat conduction rate will be a few poorer, but heatproof shake sex can rise substantially, the technical effect of both is apparently distinct. [1]
Case 2:
In Jia Xingjie limited company of landscape of Xin Yuan art appeals to fine dispute of tort of patent of limited company of design of landscape of the Long Sen that start city in one case, the right asks the feature of 1 " bottom side panel and beam pass calorie of head and card chamfer cooperate join. " product of experience case tort did not block groove, the beam that beautiful box side panel and setting carry on side passes bolt join.
The court maintains: Setting card chamfer and the basic skill that place blocking a head should realize can be join action, the effect that has with bolt place is identical. Accordingly, join blocking groove and bolt join all are fixed join means, its purpose depends on making between connective well-set, have same function and equal technical effect, the common technology personnel that belongs to competence region need not pass what creativity work can accomplish to be equal replace.
According to legal provision and judicatory practice, when undertaking is equal deciding, need considers integratedly to judge the feature that whether as corresponding as accredit patent feature has to be the same as equally in product of tort be accusinged, must from effect of method, function, technology and personnel of competence region technology whether 4 respects such as clearly undertake comparative respectively.
Accordingly, in practice of tort lawsuit judicatory, when facing two features to whether make the judgement that be equal, do not make the feature of literal tort certainly above all, the effect that analyses this feature to rise in the place in technical program, effect, further analysis is mixed for the function with same implementation the effect, arrive to be accused from patent technical program the technical program of tort product in this process, whether did personnel of competence region technology pay creativity to work. In this process, whether did personnel of competence region technology pay creativity work acceptor acceptor to watch a factor the impact is bigger, and the action of technical feature, effect, the result often can show through proving objectively to give.
Two afore-mentioned case, on record exemple one in, court with " apparent pore rate is more than 10% it is feature of these two 12.9% technologies with apparent pore rate " have distinct technical effect, and cognizance both is not formed be equal tort. On record exemple 2 in, card head and the join construction that block groove and bolt connective structure are apparently different, but court with both purpose identical, and the common technology personnel that belongs to competence region need not pass what creativity work can accomplish to be equal to replace and support prosecutor be equal view. Accordingly, in whether to form certainly be equal when tort, whether same meeting is opposite the action of both, effect to produce crucial effect as a result.
3, prohibit going back on one's word the limitation that principle reciprocity is the same as a principle
Because be equal,the principle had the protective range of patent certain outspread, so what the right asks is fair show effect will abate, and prohibit going back on one's word the principle also was to maintaining a such balances, will be equal principle demarcate is inside an appropriate limits, the public annunciate function that with ensuring the right asks.
" top people court encroachs patent dispute case to use law about cognizance the explanation of a certain number of problems " the 6th patent applicant, patent person perhaps disables in patent accredit in declare program, the technical plan that the opinion is stated and perhaps abandons through the modification to right requirement, manual, obligee brings into his patent to protect range again in encroaching patent dispute case, people court does not grant to support.
Agree in Sun Shouhui and Qingdao heart radical limited company enroach on is practical and new-style patent dispute one case, " toothpaste bag classics one bigger mouth is taken out from mouth of one strip form squeeze teething to cream thereby " it is to be accused tort product and Sun Shouhui's patent and collective technology principle, but realize this one principle to be put in a variety of technology program, product of tort be accusinged is install two through be inside one rectangle frame inclined to the page piece means comes true, sun Shouhui patent is direct come true with the means of echelon frame. But, sun Shouhui makes clear clearly in invalid declare program " design of echelon end panel is OK utmost ground is managing material " , patent reexamine committee is maintained according to this allegation of Sun Shouhui " body of frame of echelon end panel " the discriminative technology feature that is Sun Shouhui patent, maintain Sun Shouhui thereby patent is valid. The basis prohibits going back on one's word principle, the explanation that Sun Shouhui asks to the right is right in this case Sun Shouhui has sanction, accordingly, the feature of the 1st technology that answers Sun Shouhui patent namely " the frame body of echelon end panel " become strict explanation. Of product of tort be accusinged outside frame body is cartoon fish form, frame is a rectangle inside, end panel all is not echelon, cannot obtain utmost land the effect of managing material, accordingly, feature of the 1st technology does not form the technical feature B of product of tort be accusinged and Sun Shouhui patent be equal.
In afore-mentioned case, patent person is in invalid program, to maintain patent effective, the feature that asks to the right undertook the gender explains bounds to shrink, make clear clearly " design of echelon end panel is OK utmost ground is managing material " , final court also is the basis prohibits going back on one's word the principle is maintained do not form be equal. Mirrorred prohibit going back on one's word the limitation that principle reciprocity is the same as tort. Arrest patent person so contradict oneself, in different explanation is made in power program and dimension power program truly, inequitable to the public. Accordingly, tort lawsuit mixes patent to counterpoise truly program both is inseparable.
In practice, when two programs are collateral, if asked to undertake impertinent bounds shrinks to the right,the gender explains, and patent reexamine appoint be restricted to shrink according to this again the explanation was made keep the decision with significant patent, so patent person is in what this feature is aimed at in patent tort lawsuit to be equal the view of tort will the basis prohibits going back on one's word principle and do not be approved. Must want to have integrated consideration to technical program and view, especially when in invalid program patent the person asks to the right the feature undertakes explanatory, must want to consider to the view of tort is equal in whether affecting tort lawsuit, and cannot attend to one thing and lose another. Of course, sometimes the contradiction between this both cannot avoid, however, this also is exclusive law setting prohibits going back on one's word principle place should maintain in patent support of the people a balance between the public.
