Equivalent features mean the features that use substantially the same means, realize substantially the same function and achieve substantially the same effect as the technical features indicated in the claims, and that the ordinary technicians of the pertinent field may associate with these features without creative work when the alleged infringement occurs. For patent attorneys, the function and the effect of technical features are two concepts hard to distinguish. In infringement determination, it is of great significance to correctly distinguish the function and the technical effect of technical features. This article puts forward three differences which are explained with examples to provide new ideas to understand the function and the technical effect of technical features.
At present, China's patent infringement determination mainly involves two types of infringements: one is literal infringement, the other is infringement under doctrine of equivalents. In the process of determining infringement, the first consideration is whether the features are identical. However, if the features are not identical but constitute equivalent features, they may still fall into the scope of claims and constitute infringement.
Accurately determine whether features constitute equivalent features become important. Several Opinions on Issues concerning the Application of Law in the Trial of Cases on Patent Disputes of the Supreme People's Court defines the equivalent feature in Article 17 as follows: Equivalent features mean the features that use substantially the same means, realize substantially the same function and achieve substantially the same effect as the technical features indicated in the claims, and that the ordinary technicians of the pertinent field may associate with these features without creative work when the alleged infringement occurs. It can be seen that the determination of whether the technical features are equivalent or not depends on whether three criteria are met at the same time. The three criteria are: substantially the same means, substantially the same function and substantially the same effect.
Sometimes when the patent is drafted, concepts about the function and the effect of technical features are easily confused. Patent attorneys may usually interpret the two concepts as role of technical features, thereby resulting in incorrect understanding of the function and the technical effect of technical features. Apparently, if the above two concepts are not correctly understood, it will be difficult to correctly grasp the latter two of the three criteria in the evaluation and determination of the equivalent features, and thus the exploitation of patent may be affected.
Based on practical experience, the author sums up differences between the function and the technical effect of technical features in the following three points which are explained with specific examples:
1. Closeness between the function of technical features and the technical solution is less than that between the technical effect and the technical solution
Example 1: A spring has elasticity and thus is elastic, which is its inherent function, regardless of the technical solution to which the spring is applied. Suppose a technical solution is provided in which a spring is installed behind a fabric chair back. Because the spring is elastic, the user, after leaning on the chair back, can experience buffering and massage effects of the chair back through the contact therewith, so as to relax and relieve the fatigue. This is the technical effect of the spring in the technical solution, i.e., the spring is connected with the chair back as a buffer unit. When being used by a user, the spring relieves fatigue of the user by means of its elasticity, increases comfort and enhances the user experience.
Referring to example 1, it can be known that the function of technical features is less related to the technical solution, and the function of technical features can be regarded as the "inherent role" of technical features; whereas the technical effect of technical features is closely related to the technical solution, and the technical effect of technical features can be regarded as the "specific role" of technical features. Thus, the correct distinction between the function and the technical effect of technical features can be realized in this aspect.
2. The technical effect is an extension of the function of technical features
The author believes that there is an implicit "causal relationship" between the function and the technical effect of technical features. That is, a certain technical feature has a certain function, and therefore the technical feature possesses the "qualification" or "conditions" to achieve a certain technical effect in a certain technical solution. To put it briefly, the realization of a technical effect necessarily originates from the existing function of technical features. For example, it is just because of the existing elasticity of the spring that the spring in the technical solution provided by example 1 can realize its technical effect as a buffer unit which, when being used by the user, relieves the user's fatigue by means of the elasticity of the spring itself, increases comfort, and enhances the user experience.
It should be particularly noted that in this article, without being limited to the effect achieved independently by the technical feature per se, the technical effect may further be those achieved jointly by the technical feature in cooperation with other technical features, or those achieved by the technical feature in a specific scenario.
3. The scope of the function of technical features is far greater than the technical effect of the technical features in a certain technical solution
The author will explain this point of view from two aspects by providing examples respectively.
(1) The technical effect of technical features in a certain technical solution is obtained due to the extension of one of the multiple inherent functions of the technical features.
Example 2: An umbrella has a variety of functions such as blocking liquid, light and so on because of a supportable cover in its structure. Now some vehicles are equipped with an umbrella whose form is definitely different from that of common portable umbrellas. The umbrella installed on the top of the vehicles is for use in blocking the light (function), preventing the paint on the vehicle roof from fading or overheating of the vehicle roof, preventing the vehicle body from aging too fast (effects), or the like. Apparently, the vehicle roof itself has a top cover, and thus it is unnecessary to use the umbrella's function of blocking liquid to realize an effect. Instead, the function of blocking sunlight is mainly applied.
As can be known, the technical effect of technical features in a certain technical solution is obtained due to the extension of one of inherent multiple functions of the technical features. Example 2 proves from one aspect that the scope of the function of technical features is far greater than that of the technical effect of the technical features in a certain technical solution.
(2) The technical effect of technical features in a certain technical solution is one of the multiple technical effects that can be achieved by a certain function of the technical features.
Example 3: One of the technical features of a mold is that it has a groove which has a variety of functions. For example, the groove has bearing and shaping functions. As far as the shaping function is concerned, in a technical solution having a mold groove, since there are three kinds of materials put in the groove, after the materials are stirred and processed by other operations, a product of the mixed materials is finally shaped and obtained. Therefore, in the technical solution, the groove realizes the technical effect of mixing and shaping of multiple materials. In another technical solution, the groove shape is very regular, the shape of the processed product will also be very regular, so the transportation space is highly saved during product transportation. The finally achieved technical effect of the shaping function of the groove is to improve transportation efficiency.
As can be seen, the technical effect of technical features in a certain technical solution is likely to be one of the plurality of technical effects that a certain function of the technical features can achieve. Therefore, it is verified from another aspect that the scope of the function of technical features is far greater than that of the technical effect of the technical features in a certain technical solution.
To sum up, the function and the technical effect of technical features can be correctly distinguished from any of the three angles, that is, the closeness with the technical solution, the extension relationship, and the size of the involved scope. Correctly distinguishing the function and the effect of technical features can facilitate correctly using the three criteria mentioned above to measure whether two technical features constitute equivalent features, and thereby helping the patent attorneys smoothly defend and practice patent during the infringement litigation.
京公网安备 11010802020770号