Question

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专利侵权认定一直是各国司法实践中的一个难点问题,而禁止反悔原则作为专利侵权认定中的一项重要原则,仍有许多颇有争议和急需解决的理论问题。虽然我国在司法实践上采纳了禁止反悔原则,但在立法中尚未正式确立该原则。丰富对该原则的研究,有助于形成对该原则的成熟的理论观点,以有效指导我国立法和司法实践。禁止反悔原则根源于普通法中的衡平观念,在大陆法系也可视为诚实信用原则的延伸。从法理学的视角对禁止反悔原则进行深入剖析后可知,禁止反悔原则并不是等同原则的附属原则,它有其自身独立的法理基础和逻辑体系。 从国内外大量关于禁止反悔原则适用的司法案例来看,禁止反悔原则不仅仅是对等同原则进行限制的工具,还是界定专利权保护范围的工具。如果专利权人在专利申请、专利审查等程序中对权利要求和申请文件进行了修改,或对权利保护范围进行了限定,可以推定他放弃了原始权利要求与修改后的权利要求之间的权利范围。但是,如果专利权人能证明其修改限定的本意中并不包括被告人提出的禁止反悔的范围时,专利权人可以克服禁止他主张等同的上述推定,即在该种情形下禁止反悔原则是不能排除等同原则的适用的。禁止反悔原则是基于平衡专利权人与社会公共利益的需要、诚实信用原则以及专利文件公信力的要求而产生的。禁止反悔原则的作用在于准确界定专利权保护范围,而不只是一种抗辩权而已。 由于我国专利立法不完善,适用禁止反悔原则经验不足,以及我国的专利档案公开不够全面等因素的影响,致使我国法院在在审理专利侵权案件中,运用禁止反悔原则还不太自如。因此,为解决司法实践中越来越复杂的专利侵权纠纷,专利法的修订已刻不容缓。我国应紧密结合我国现阶段实际情况,有选择地借鉴国外的立法和司法经验,及时修订专利法,对禁止反悔原则及其他原则做出详细的规定。

Answer 1

Patent infringement is always a difficult problems of national judicial practice, and the principle of estoppel, as an important principle of patent infringement, there are still many controversial and pressing theoretical problem. Although China has adopted the principle of estoppel, in judicial practice, but has not yet been formally established the principle in legislation. Study on the principles of rich, mature theory perspectives contributes to the principles to effectively guide the legislative and judicial practice in China. Roots of estoppel in common law concepts of equity, in civil law can also be seen as extension of the principle of good faith. From the perspective of jurisprudence on the principle of estoppel, after an in-depth analysis of unknown, principle of estoppel is not the same as the principle of subsidiary, it has its own separate legal basis and logical system. From a lot at home and abroad about judicial estoppel applies case, estoppel is not merely tools to limit the equivalence principle, also is a tool for defining the scope of patent protection. If the patentee in the patent application, patent examination procedures for claims and the application files have been modified, or the scope of rights protection had been qualified, can be presumed that he gave up the original claims and modified scope of rights between the rights. However, if the patentee proves in its modified qualified had in mind was when the scope of the estoppel includes the defendant, the patentee can overcome the prohibition he advocated the same as the above presumption, that is, in such a case estoppel cannot exclude the application of the equivalence principle. Estoppel is based on balancing the interests of the patentee and public needs, the principle of good faith and credibility arise from the requirements of patent documents. Effect of estoppel is accurately defining the scope of patent protection, and not just a right to defend it. Since China's patent legislation is not perfect, apply the principle of estoppel, the lack of experience and patent files open comprehensive enough influence of such factors, resulting in court in the trial of patent infringement cases in China, use of estoppel is not too easily. Therefore, in order to solve the increasingly complex patent infringement disputes in judicial practice, patent law amendments without delay. China should close connection with the actual situation at the present stage in China, selectively using foreign experience in legislative and judicial, timely amended patent law, made to the principle of estoppel, and other detailed requirements.

Answer 2

Patent infringement is that countries have been in judicial practices a difficult problem, and estoppel principle as a patent infringement of an important principle, there are still many controversial in need of solution and the theory problem. Although China's judicial practice adopted the estoppel principle, but in the legislation has not yet formally confirmed this principle. The principle of the rich, the principle to form the mature theoretical viewpoints, in order to guide our legislative and judicial practice. Prosecution history estoppel rooted in common law of equitable idea, in the continental law system also can be regarded as the extension of the principle of good faith. From the perspective of jurisprudence of estoppel principle after further analysis, it is known that estoppel principle is not equivalent principle of subsidiary principle, it has its own independent legal principles and logical system. In the domestic and overseas a lot about estoppel principles applicable judicial cases to see, is not only the principle estoppel of equivalent principle of limits on the tools, or define the scope of patent protection tools. If the application for a patent, patent examination in the process of the claim and application documents have been modified, or the scope of protection of the rights of limited, can be presumed he gave up the original claim and modification of the right to ask the right between range. But, if the patent holder can prove its modification of the original idea of limited does not include the defendant proposed estoppel of range, the patent holder can overcome that equal the prohibited his presumption, that is, in this case estoppel principle is can't rule out the application of the principle of equivalent. Prosecution history estoppel is based on the balance of the needs of public interests, the principle of good faith and the requirements of the patent document credibility and of generation. Prosecution history estoppel's role is to define the scope of protection of the patent right accurate, and not just a kind of defense right just. Because China's patent legislation not perfect, the applicable estoppel principle experience, and China's patent file is not comprehensive public the influence of factors, which in our courts in the adjudication of patent infringement case, the use of estoppel principle is not too freely. Therefore, in order to solve the judicial practice more and more complex patent infringement dispute, it becomes urgent revision of the patent law. Our country should closely combining the actual situation in present China, selective use for reference foreign legislation and judicial experience, revised timely patent law, to estoppel principles and other principles make detailed regulations.

Answer 3

Patent infringement is that countries have been in judicial practices a difficult problem, and estoppel principle as a patent infringement of an important principle, there are still many controversial in need of solution and the theory problem. Although China's judicial practice adopted the estoppel principle, but in the legislation has not yet formally confirmed this principle. The principle of the rich, the principle to form the mature theoretical viewpoints, in order to guide our legislative and judicial practice. Prosecution history estoppel rooted in common law of equitable idea, in the continental law system also can be regarded as the extension of the principle of good faith. From the perspective of jurisprudence of estoppel principle after further analysis, it is known that estoppel principle is not equivalent principle of subsidiary principle, it has its own independent legal principles and logical system. In the domestic and overseas a lot about estoppel principles applicable judicial cases to see, is not only the principle estoppel of equivalent principle of limits on the tools, or define the scope of patent protection tools. If the application for a patent, patent examination in the process of the claim and application documents have been modified, or the scope of protection of the rights of limited, can be presumed he gave up the original claim and modification of the right to ask the right between range. But, if the patent holder can prove its modification of the original idea of limited does not include the defendant proposed estoppel of range, the patent holder can overcome that equal the prohibited his presumption, that is, in this case estoppel principle is can't rule out the application of the principle of equivalent. Prosecution history estoppel is based on the balance of the needs of public interests, the principle of good faith and the requirements of the patent document credibility and of generation. Prosecution history estoppel's role is to define the scope of protection of the patent right accurate, and not just a kind of defense right just. Because China's patent legislation not perfect, the applicable estoppel principle experience, and China's patent file is not comprehensive public the influence of factors, which in our courts in the adjudication of patent infringement case, the use of estoppel principle is not too freely. Therefore, in order to solve the judicial practice more and more complex patent infringement dispute, it becomes urgent revision of the patent law. Our country should closely combining the actual situation in present China, selective use for reference foreign legislation and judicial experience, revised timely patent law, to estoppel principles and other principles make detailed regulations.