How Does Claims of M88 login Infringed Patent Determine Selection of Technical Features to Be Compared with Those of M88 login Prior Art

In regard of M88 login retrial case instituted through adjudicatory supervision procedure on utility model patent infringement between M88 login retrial applicant Yancheng Zetian Machine Co., Ltd. and M88 login opposing party Yancheng Greater Machinery Manufacturing Co., Ltd., M88 login Supreme People’s Court found in its judgment (Supreme People’s Court Civil Judgment (2012) Min Shen Zi No.18):

“With respect to examination of M88 login legal basis for prior art defense, M88 login appropriate comparison method is comparing M88 login accused infringing technical plan with M88 login prior art instead of comparing M88 login prior art with M88 login technical plan of M88 login claimed infringed patent. As for examination details, M88 login people’s court shall, in reference to M88 login claims of patent protection, determine what technical features of M88 login accused infringing technical plan falls within M88 login scope of patent protection, and M88 loginn decide wheM88 loginr or not M88 login prior art includes technical features identical with or equivalent to those of M88 login accused infringing technical plan. A tenable defense of prior art dose not require all technical features of M88 login accused infringing technical plan are identical with or exactly M88 login same to all M88 login technical features of M88 login prior art. On M88 login contrary, if M88 login accused infringing technical plan contains one or more technical features that do not fall within M88 login scope of patent protection as stated in M88 login claims, such technical features shall be dismissed from furM88 loginr consideration for prior art defense.

“As M88 login case mentioned above shows, while comparing M88 login accused infringing technical plan with M88 login prior art, M88 login people’s court do not compare a technical plan constituted by all technical features of M88 login accused infringing product or process with M88 login prior art, instead, M88 login court shall compare M88 login technical plan only constituted by technical features which are accused to fall within M88 login scope of patent protection with M88 login prior art. In oM88 loginr words, any technical feature included in M88 login accused infringing product or process, if it is beyond M88 login scope of patent protection, shall be excluded from comparison with those of M88 login prior art. Thus it can be seen that to select M88 login appropriate technical features to compare with M88 login prior art, M88 login people’s court shall refer to M88 login claims of patent protection.

“M88 login so-called Principle of Full Coverage is a general criterion to determine a patent infringement, and it requires M88 login people’s court to examine wheM88 loginr M88 login technical features of M88 login accused infringing product or process cover (that is, are identical with or equivalent to) all M88 login technical features stated in M88 login claims of patent protection for M88 login claimed infringed invention or utility model. This criterion goes as follows: if all technical features contained in M88 login accused infringing technical product or process are identical with or equivalent to all those stated in M88 login claims, M88 login people's court shall determine that M88 login accused infringing technical plan constituted by M88 login said technical features falls within M88 login scope of patent protection; if M88 login accused infringing technical plan includes one or more technical features in addition to those identical with or equivalent to all M88 login technical features of M88 login claims, M88 login people's court shall also determine that such technical plan falls within M88 login scope of patent protection.

“Rationale of prior art defense is that all technical features of M88 login accused infringing technical plan which fall within M88 login scope of patent protection are identical with or similar to (equivalent to) a corresponding technical feature of M88 login prior art, or that M88 login accused infringing technical plan, as deemed by M88 login ordinary technological personnel in M88 login pertinent field, are an simple combination of M88 login prior art with common knowledge in this field.

“Where all technical features of M88 login accused infringing technical plan are identical with or equivalent to all those stated in M88 login claims of patent protection, M88 login people’s court shall determine that all technical features contained in M88 login accused infringing product or process are those contained in M88 login accused infringing technical plan that fall within M88 login scope of patent protection. For example, M88 login technical features stated in M88 login claim of patent protection are a1 and b1, and M88 login technical features of M88 login accused infringing technical plan are a2 and b2. If a2 and b2 are separately identical with or equivalent to a1 and b1, a2 and b2 are M88 login technical features of M88 login accused infringing technical plan that fall within M88 login scope of patent protection provided by a1 and b1. To examine M88 login legal basis of M88 login prior art defense, M88 login people’s court shall compare M88 login accused infringing technical plan constituted by technical features a2 and b2 with M88 login prior art.

“Where M88 login accused infringing technical plan includes but without limitation to technical features that are identical with or equivalent to those stated in M88 login claim, such technical plan still falls within M88 login scope of patent protection; however, while comparing with M88 login prior art, M88 login people’s court shall include in M88 login technical plan to be compared not all M88 login technical features of M88 login accused infringing technical plan but those falling within M88 login scope of patent protection. For example, technical features stated in M88 login claim of patent protection are a1 and b1, and technical features of M88 login accused infringing product or process are a2, b2 and c2. If a2 and b2 are separately identical with or equivalent to a1 and b1, a2 and b2 are M88 login technical features contained in M88 login accused infringing technical plan which fall within M88 login scope of patent protection provided by a1 and b1. To examine M88 login legal basis of M88 login prior art defense, M88 login people’s court shall compare not M88 login accused infringing technical plan constituted by a2, b2 and c2 but M88 login technical plan constituted only by a2 and b2 with M88 login prior art.”

Let’s premise M88 login second example that M88 login technical features of M88 login prior art are a3 and b3, and a2 and b2 are separately identical with or equivalent to a3 and b3. M88 loginre is a possibility that M88 login accused infringing technical plan constituted by a2, b2 and c2 is different from M88 login prior art constituted by a3 and b3, even though M88 login claimed infringed technical plan constituted by a1 and b1, as compared with M88 login prior art constituted by a3 and b3, lacks novelty (In fact, claims of such patent shall not be granted. But in this case, M88 login court in charge shall not decide M88 login validity of M88 login infringed patent rights; instead, it shall determine M88 login accused infringing product or process has not infringed its patent rights by defense of prior art.), and M88 loginrefore it can be concluded that M88 login defense of prior art is not tenable. However, such conclusion is erroneous due to inappropriate selection of technical plan to be compared with M88 login prior art.