Introduction to the case: In April 2001, the plaintiff Dong (patentee) filed a lawsuit with an intermediate people's court, claiming that the isostatic press produced by the defendant, a permanent magnet special equipment company, infringed its patent number. It is the utility model patent of 9821?418? isostatic press.

Based on the "comprehensive coverage" principle of patent infringement determination, after comparing the technical features of the patent and the allegedly infringing products, the focus of the dispute between the plaintiff and the defendant was focused on three of the corresponding technical features. As the patentee, the plaintiff strongly advocated the application of the "equivalence principle" in determining patent infringement, determined that the three corresponding technical features constituted equivalence, and determined that the defendant's product infringed the plaintiff's patent rights. The defendant holds a completely opposite view, believing that the three corresponding technical features are not the same and not equivalent, and the defendant's products do not infringe the plaintiff's patent rights.

The determination of equivalence requires analysis and comparison based on the technical means used for corresponding technical features, the functions implemented respectively, and the effects achieved respectively. This is not only a legal issue but also involves deep professional and technical knowledge, so intermediate The People's Court entrusted an intellectual property judicial appraisal center to conduct appraisal.

After accepting the entrustment, the appraisal center organized relevant experts in accordance with the law, in accordance with the provisions of Article 56 of the Patent Law of the People's Republic of China and the Supreme People's Court's "Several Issues Concerning the Application of Legal Issues in the Trial of Patent Dispute Cases". The Judicial Interpretation of Article 12 of the "Provisions" (hereinafter referred to as "Several Provisions") on the determination of equivalence, after a comprehensive analysis and comparison of the technical features of the plaintiff's patent claims and the technical features of the alleged infringing products, four of the corresponding technologies were determined The characteristics are the same, and the other three corresponding technical features have different functions, so it is concluded that the three corresponding technical features are not the same and not equivalent.

Without notifying the appraisal agency to participate, after cross-examining the above-mentioned appraisal report, the Intermediate People’s Court determined that the appraisal report was based on the fact that “the contents of the description and drawings of the patent cannot be introduced into claims”. In essence, structural features that only appeared in the patent specification were introduced into the patent claims, thus narrowing the scope of protection of the plaintiff's patent and disallowing the identification conclusion. And through discussion, it was determined that the technical means, functions and effects of the above three corresponding technical features are basically the same; it was also determined that the three corresponding technical features of the accused infringing product were based on the "improved implementation" of the patented technology, and should be applied Principle of equivalence. Therefore, it was judged that the alleged infringing product infringed the plaintiff's patent rights.

With the same case facts and the same corresponding technical features, why are the appraisal conclusions of the appraisal agency completely different from the court’s judgment? How to correctly interpret the claims based on the contents of the description and drawings when making an equivalent determination? ?How to identify "deteriorated technology"? What is its connection with the determination of equivalence? Which one is correct, the appraisal conclusion of the appraisal agency or the court's judgment?

The above issues can be summarized into two questions, The first is how to correctly interpret the claims based on the contents of the description and drawings when making an equivalent determination? The second is how to identify "deteriorated implementation" and what is its connection with the determination of equivalent technical features?

Case analysis

1. How to correctly interpret the claims based on the contents of the description and drawings when making an equivalent determination?

1 The concept, characteristics and determination criteria of equivalent features

The Patent Law and its implementing regulations do not clearly define the concept of equivalent technical features. According to the needs of judicial practice, the Supreme People's Court made the following provisions in Article 1 of the "Several Provisions". As mentioned in Article 56, paragraph 1, of the Patent Law, "the scope of protection of an invention or utility model patent shall be based on the content of its claims." ", the description and drawings can be used to interpret the claims" means that the scope of protection of the patent right should be based on the scope determined by the necessary technical features clearly stated in the claims, and also includes features that are equivalent to the necessary technical features. determined range. Equivalent features refer to features that use basically the same means to achieve basically the same functions and achieve basically the same effects as the recorded technical features, and that a person of ordinary skill in the field can associate with them without having to go through creative work.

This provision clearly gives the concept and characteristics of "equivalent characteristics". In addition, it can also be known from this concept that the criterion for determining equivalent features is the technical means, functions and effects of the necessary technical features of the patent that are clearly stated in the patent claims themselves or explained in the description and drawings.

The key to the determination of equivalence is the analysis and judgment of the technical means, functions and effects of the necessary technical features of the patent. This requires understanding how to interpret patent claims with patent descriptions and drawings.

2. How to interpret patent claims with the patent specification and drawings

Article 56 of the Patent Law and Article 12 of the "Several Provisions" of the Supreme People's Court both stipulate that "the specification and the appendix" Drawings can be used to interpret claims", but how to interpret it was not further clarified.

In order to unify understanding and facilitate practical operation, the Beijing Higher People's Court issued the "Regulations on Several Issues in the Determination of Patent Infringement" to its affiliated Beijing First and Second Intermediate People's Courts on September 29, 2001. Opinion (Trial)" (hereinafter referred to as the "Opinion"), which was once praised by Professor Zheng Chengsi as "even in the international intellectual property judicial community, it is qualified to occupy a place" and is the first comprehensive and systematic one in the national high court system. The high-level summary and theoretical summary of judicial practice in determining patent infringement has been widely used for reference by courts in various places when hearing patent dispute cases.

This "Opinion" provides a clear and systematic summary of how to interpret the claims based on the patent description and drawings.

(1) Article 1 of the "Opinions" clearly clarifies in accordance with the law that "the description and the drawings can be used to interpret the claims", and at the same time imposes a principle restriction on this interpretation, that is, "the contents of the description and the drawings cannot be used to interpret the claims". Introducing claims”.

(2) Article 6 of the "Opinion" stipulates that "the principle of compromise interpretation should be adopted when interpreting claims based on the description and drawings. It is necessary to avoid the principle of peripheral limitation, that is, the scope of protection of the patent and the claims The scope of protection recorded in the text is completely consistent, and the description and drawings can only be used to clarify certain ambiguities in the claims: We must also avoid adopting the central limitation principle, that is, the claims only determine a general core of the invention, and the scope of protection can only be used to clarify certain ambiguities in the claims. After reading the description and drawings, technical experts believe that the patentee's claim for protection falls within the scope of protection. The compromise interpretation principle should be in the middle of the two extreme interpretation principles, and should combine reasonable and legitimate protection for the patentee. the legal stability of the public and its legitimate interests." The theory of balance of interests is the cornerstone of intellectual property legal provisions, and the principle of compromise interpretation is the best embodiment of the theory of balance of interests.

(3) In order to implement the principle of compromise interpretation, Article 11 of the "Opinion" stipulates that "the patent specification and drawings may be used to fairly expand the scope of protection of the technical solution limited by the literal meaning of the patent claim." Or a narrow interpretation, that is, features equivalent to necessary technical features are interpreted into the scope of patent protection, or certain necessary technical features are limited by the patent description and drawings."

It can be seen from this that the equivalent features are the result of an expanded interpretation of the protection scope of the technical solution literally defined by the patent claims based on the patent description and drawings. It is the result of a comparative analysis of the explanations of the technical means, functions implemented and effects achieved regarding the necessary technical features of the patent claims in the patent specification and drawings with the corresponding technical features. Therefore, when interpreting patent claims based on the content of the description and drawings and making an equivalent determination, one should first determine the technical means, functions and effects of the necessary technical features in the description and drawings, and then conduct a comparative analysis with the corresponding technical features. Only in this way can we draw objective and fair conclusions. This is consistent in legal spirit with the Patent Law and "several provisions" of the Supreme People's Court.

2. The appraisal conclusion made by the appraisal agency in this case that the corresponding technical characteristics are not equivalent is correct.

1. The appraisal conclusion of the appraisal institution is based on the explanation of the necessary technical features of the plaintiff’s patent specification and drawings.

The appraisal institution’s patent rights are based on the plaintiff’s patent description and drawings. Description and explanation of the necessary technical features in the requirements, especially the description of the "Advantages and effects of the present utility model" part, that is, in the patent, "the guide pillar and the guide bush cooperate to play a positioning and guiding role, and a spherical pad is added on top of it. The eccentric load can be adjusted. The center hole of the spherical pad cooperates with the piston rod to increase the stability of the piston rod. Since the center hole D1 of the spherical pad is smaller than the booster piston D2, this step can be used to pull up the guide post and open the high-pressure chamber during the return stroke. "Get the workpiece", based on this, it is judged that the function of the high-pressure piston and the spherical pad in the plaintiff's patent in cooperation with the lifting guide column is indispensable to achieve the purpose of the patent, and it is an objective and unquestionable fact in the patent specification, and it is made that it is consistent with the corresponding technology. Characteristics are functionally different.

2. The appraisal conclusion of the appraisal agency is made after comparative analysis in accordance with the law.

The appraisal agency conducted a comprehensive and detailed comparative analysis of the corresponding technical features based on the explanation of the instructions and drawings in accordance with the law. .

(1) In the plaintiff’s patent, “the supercharging piston is connected to the high-pressure piston through the piston rod, and the high-pressure piston slides with the inner cavity of the guide rod” and in the accused infringing product, “the supercharging piston is connected to the high-pressure piston through a movable connection” Between the piston connection and the sliding fit between the high-pressure plunger and the inner cavity of the guide column, "the patented high-pressure piston, in addition to generating high pressure on the medium, also has the function of lifting the guide column by cooperating with its spherical pad. This is caused by its piston rod and Determined by the variable diameter structure of the high-pressure piston, the patented high-pressure piston is not only a simple pressure component, but also a driving component linked to other functional components. In contrast, the defendant's high-pressure plunger is only a single-function pressure component. components. Therefore, the functions of the two cannot be considered to be basically the same."

(2) In the plaintiff’s patent, “the guide post is positioned and guided through the guide sleeve” and in the accused infringing product, “the guide post is fixed with a flange, and the flange connects the pistons of the two oil cylinders located at the lower part of the frame. "between the rods", "the patented guide sleeve fixed sleeve is placed on the periphery of the guide column, its function is to limit and guide the guide column", and in the defendant's product "the main function of the two lower oil cylinders is to drive the guide column to move up and down" , so, although the structural form of the two cylinders is basically the same as the patented guide bush in terms of guide positioning, the function of driving the guide post is not possessed by the patented guide bush. Due to the lower cylinder of the defendant's product, The driving method of the guide pillar has been changed. In view of the different main functions of the corresponding features, it is determined that the two are neither the same nor equivalent."

(3) In the plaintiff's patent, "the upper part of the guide pillar is connected. "Spherical pad: the spherical pad contacts the transverse slider" and "the upper part of the guide post has a flat pad, and this flat pad contacts the transverse slider" in the accused infringing product, "the patented spherical pad has a spherical upper part, which is normal The spherical structural form is used to realize the function of adjusting the eccentric load to protect the guide pillar. The defendant's flat gasket uses its lower surface to compress the sealing gasket at its lower part. Its upper part is in contact with the transverse slider, which only isolates the guide post from contact with the slider. , does not have the function of overcoming eccentric load. In addition, the working mechanism of the two is different. In addition, since the central hole diameter of the patented spherical pad is smaller than the outer diameter of the aforementioned high-pressure piston, a gap is formed between the lower plane of the spherical pad and the upper plane of the high-pressure piston. A step was created to realize the function of lifting the guide pillar. However, the defendant's flat pad does not have this function. At this point, we can see the working methods and implementation of the flat pad and the patented spherical pad in the defendant's product. "The functions are substantially different", this corresponding feature does not constitute equivalence.

To sum up, the appraisal agency based on the patent specification’s objective explanation of the function of its high-pressure piston and spherical pad to cooperate with the lifting guide column. After analyzing and comparing the corresponding technical features in accordance with the law, it came to different and inconsistent conclusions. This conclusion is correct.

3. In this case, the court’s understanding of “the description and enclosed content cannot be introduced into the claims” is one-sided. The corresponding technical features based on this are basically the same in terms of means, functions and effects. The identification is questionable.

1. The court’s understanding of “the contents of the description and drawings cannot be introduced into claims” is one-sided

In the Patent Law and its Implementing Rules and the “Several Provisions” of the Supreme People’s Court There is no restriction on "the description and drawings can explain the claims" and "the content of the description and drawings cannot be introduced into the patent claims". This restriction appears in Article 15 of the "Opinions" of the Beijing High Court. This article defines the introduction of the content of the description and drawings into the claims as bringing the technical solutions that are only recorded in the patent description and drawings but not reflected in the patent claims into the scope of patent protection. On the basis of summarizing judicial practice, this article also summarizes three situations that cannot be introduced. Relevant to this case is the first situation, that is, if a technical solution is fully disclosed in the patent specification and has specific description and embodiment, but it is not recorded in the claims, then when interpreting the patent claims, It cannot be included in the scope of patent protection.

It should be noted that the description and drawings cannot introduce the "technical solution" into the claims, so is there any difference between the technical features and the technical solution? All legal and judicial interpretations, including those of the Beijing High Court There is no definition of technical solutions in the "opinions". However, it can be seen from the definition of "necessary technical features" in Article 125 of the Beijing High Court's "Opinions" that there is a difference between the two: Necessary technical features refer to technologies that can independently solve the problem of inventions or utility models in technical solutions. A technical unit or a collection of technical units that produces technical effects. For example, the technical features of a product patent include the components of the product and the combination relationship between the components.

The above summary can be extended and understood as follows. A single component or the combination relationship between individual components in a utility model patent cannot be called a technical solution, but can only be called the technical features that make up the technical solution. As determined in the above-mentioned judgment and explained in the patent specification, the patented high-pressure piston and spherical pad, as well as the reducing structural features combined between them to realize the function of driving the guide pillar, do not fall within the scope of the technical solutions summarized above. Of course, there is no question of whether the appraisal institution has "introduced" it or not, so the court's understanding of "the contents of the description and drawings cannot be introduced into the claims" is one-sided.

2. The analysis and comparison of the three aspects of technical means, functions and effects corresponding to technical features in the court’s judgment are simple and empty, and the conclusion drawn is unconvincing and worthy of discussion

In this case, the court found out that the high-pressure piston and spherical pad in the plaintiff’s patent have the function of lifting the guide post, and the driver of the guide post in the accused infringing product is a “piston” corresponding to the guide sleeve in the plaintiff’s patent. In the case of the technical feature of "a flange fixed on the guide column and two small oil cylinders connected to the flange and located at the lower part of the frame", based on the fact that "the contents of the description and drawings cannot be introduced into the claims", it was determined that " The appraisal report essentially introduces the guide pillar-driven step structure feature that only appears in the patent specification into claim 1, and provides a narrowed interpretation of patent claim 1. The column driving structure is a technical feature other than all the technical features in claim 1 of the plaintiff’s patent.”

Subsequently, in the name of excluding the guide pillar driving structure, what is essentially excluded is indispensable to achieve the purpose of the patent and objectively exists on the corresponding technical features of the patent, making the patented technical features different from the function of driving the guide pillar of the alleged infringing technical features. , the function of the driving guide pillar in the accused infringing product. It is conceivable that the comparative analysis conducted under this situation can only be simple, one-sided and empty. Taking the comparative analysis of the high-pressure piston and the high-pressure plunger in the judgment as an example, the judgment determined that “as far as the high-pressure piston and the high-pressure plunger are concerned, the piston and the plunger are the two most well-known pressurizing components. Replacing the piston with the plunger is the hydraulic pressure. Ordinary technicians in the mechanical field can imagine that the two methods are basically the same in terms of technical means. They both use a columnar object to enter the inner cavity of the guide column and compress the pressure oil in the inner cavity of the guide column under the drive of external force. Both have basically the same function, both compress the pressure oil in the inner cavity of the guide pillar to achieve pressure amplification, and provide ultra-high pressure to the high-pressure chamber. Both achieve the same effect of pressure amplification and the pressure amplification ratio is the same." . Such an analysis is unconvincing and debatable.

To sum up, when making the equivalent determination in this case, the court confused the difference between technical features and technical solutions, and one-sidedly understood that "the contents of the description and drawings cannot be introduced into the claims", and accordingly made the decision The conclusion that the three corresponding technical features constitute equivalents is questionable.

4. Understanding and identification of deteriorated technical solutions.

1. The concept of inferior technical solution

my country’s Patent Law and its Implementing Rules, as well as the “Several Provisions” of the Supreme People’s Court, do not include inferior technology. definition. Article 41 of the "Opinions" of the Beijing High Court defines inferior technical solutions as those that deliberately omit certain necessary technical features in the patent claims, making the technical solution inferior to the patented technical solution in terms of performance and effect. If the technical solution is deteriorated, and the deteriorated technical solution is obviously caused by the omission of necessary technical features, the principle of equivalents should be applied to determine that it constitutes patent infringement.

2. Characteristics of deteriorated technical solutions

From the above concepts, we can know that deteriorated technical solutions should have the following characteristics,

(1) Accused of deterioration It is the entire technical solution rather than a certain technical feature.

(2) The alleged inferior technical solution is formed by omitting certain necessary technical features in the patent claims.

(3) Due to the above reasons, compared with the patented technical solution, the overall effect and performance of this technical solution are not as good as the patented technical solution.

(4) The principle of equivalent determination is applied to the inferior technical solution and it is determined to constitute infringement.

3. The court’s determination of inferior implementation in the above case is questionable

Because the reason for the court’s determination of inferior implementation is inconsistent with the characteristics of the above-mentioned inferior technical solution.

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(1) The court determined that the first reason for the inferior implementation was that “the defendant made changes to the corresponding technical features that would be known to ordinary skilled persons.” The above-mentioned inferior technical solution was obtained by omitting the terms in the patent claims. Comparing the methods of certain necessary technical features, the court’s understanding of the improved implementation method is obviously different from that of the above provisions.

(2) The court determined that the improved implementation method was inconsistent with the above provisions. The second reason is that the defendant's modified technical features "actually produce no better effects than the plaintiff's patented technology." There are two points worthy of discussion. The first is that the technology should be compared to determine whether the modification is inferior. The effect of the scheme rather than the effect of the specific technical features. Secondly, this determination was made without comprehensive and detailed analysis. In fact, the alleged infringing product is superior to the patented product in many aspects, such as the effect of the patent. The guide sleeve only has a small "window" for positioning and guiding the guide post. It is very inconvenient to pick and place the workpiece. The accused infringing product uses a plunger and a small cylinder to cooperate with the guide. This method not only stabilizes the guide column but also broadens the space for picking and placing workpieces.

Conclusion:

Through the above cases. The analysis shows that the determination of equivalent patent infringement includes two aspects: one is the determination of equivalent technical features, and the other is the determination of inferior technical solutions. The principle of compromise interpretation should be adopted in both determinations, and the patent claims should be based on the contents of the description and drawings. Make a correct interpretation of the technical features in the patent or the entire patented technical solution, balance the interests of the patentee and the public, and achieve social stability, civilization and progress.