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On the principle of literal infringement in the patent law of the United States.

Release time:

2016-12-02 13:31

In U.S. patent law, the literal infringement principle is defined as follows.

Literal infringement means that the product or method accused of infringement has every technical feature in the claim compared with the claim of a patent, or that every qualification or element in the claim can be found in the product or method accused of infringement, the alleged infringing product or method constitutes a literal infringement of the patent "courts often use foreseeable standards as a reference to literal infringement." If the claimed subject matter exists in the prior art as defined in Article 102 and is before the patentee's purpose of invention, then the claim is foreseen; If the claimed subject matter is used after the date of grant of the patent, that's a literal violation ".

If a product or method that is sued for infringement contains fewer technical features or steps than the cited claim, then there is no literal infringement "whether the technology that is sued for infringement exceeds the listed technical features, depending on the transitional terms appearing in the claim" Most claims use the transitional term "including", which is an open-ended claim, additional technical features that are not included in the claims can be added at will. "Other claims use a closed or mixed transitional term. If the technology being sued for infringement contains technical features other than those in the claims, it may not be judged as infringement".

The claims interpret the scope of protection and must be based on the description. The process of determining whether the alleged infringing product or method is equivalent to the technical features of a patent claim is a matter of fact. Under the American legal system, it is decided by a jury. Because the whole process needs to be supported by evidence, with the help of the jury's determination.

Article 56 of China's Patent Law stipulates that the scope of protection of the patent right for invention or utility model shall be subject to the content of its claims, and the description and drawings may be used to interpret the claims. This article is the most basic principle and legal basis for the determination of patent infringement in China, which is called "comprehensive coverage principle" in academic circles ".

The principle of comprehensive coverage is the most basic principle of patent infringement judgment. Other principles, including the principle of equivalence and estoppel, are complementary to the principle of comprehensive coverage. The application of the principle of equivalence and estoppel is to exclude the interference of some special circumstances on the principle of comprehensive coverage and to avoid the tortfeasors from deliberately circumventing the sanctions of the law by taking advantage of the shortcomings of the principle of comprehensive coverage. However, in any case, the principle of comprehensive coverage is the basis for the determination of patent infringement, and several other principles serve to better apply the principle of comprehensive coverage. From the principle of comprehensive coverage, several other principles, such as the principle of equivalence, the principle of estoppel and the principle of superfluous designation, lose their value and significance.

Source:http://www.iprlawyers.com/ipr_Html/08_04/2006-3/6/20060306144816550.html