论基础专利之改进技术保护路径的完善——以确立反向等同原则为视角

我国基础专利之改进技术的实施面临诸多障碍，阻碍了改进技术的推广应用，美国司法实践中由法官创设的反向等同原则对于我国解决这一困境具有借鉴意义。对反向等同原则的制度功能与理论基础进行规范分析，并辅以比较法视角，研究发现：反向等同原则不仅可以限制专利字面侵权，平衡专利权人与改进者之间的利益，还可以作为专利政策杠杆，对专利法保护的不同行业技术进行微观调控。确立反向等同原则符合专利契约理论对公平的要求，亦与知识产权工具论的主张相契合。最后，提出建议：以反向等同原则的确立为切入点，使落入专利权利要求字面含义范围内、与专利技术不相等同的全新改进技术免于专利侵权，同时严格把握反向等同原则的适用条件，兼顾基础专利保护与全新改进技术激励。

Research on the Perfection of Improved Technology Protection Path of Basic Patent: from the Perspective of Establishing the Reverse Doctrine of Equivalents

The development of science and technology is inseparable from technology improvement. Any pioneering inventions can be regarded as the improved versions of existing technology. At present, China is a major force shifting from introducing intellectual property rights to creating intellectual property rights, and the work on intellectual property is focusing on quality improvement instead of quantity pursuit, which requires the effective protection of improved technology. However, the implementation of the improved technology face many obstacles. Firstly, in the context of China's patent system, the improved technology of basic patent has dependency. Without the permission of the basic patentee or the compulsory license issued by the State Intellectual Property Office, when the improver implements the improved technology of the basic patent, he is likely to infringe the basic patent. Secondly, based on the pursuit of maximum interests and other reasons, it is difficult to reach the license agreement of basic patents in reality. Finally, since China's patent law has strict provisions on the conditions for the issuance of compulsory licenses for basic patents, the State Intellectual Property Office has not issued such compulsory licenses so far.#br#The difficulty of how to implement the improved technology of basic patent in China hinders the popularization and application of the improved technology. In the judicial practice of the United States, the reverse doctrine of equivalents created by judges is of great significance for China to solve this dilemma. In Boyden Power-Brake Co. v. Westinghouse, the United States Supreme Court held that the patentee could sue the alleged infringer within the scope of his claims. However, if the alleged infringer has changed the principle of the device literally determined in the patent claims so that the claims cannot represent the actual invention of the alleged infringer, it is almost impossible to judge the patent infringement even if the alleged infringing device falls within the literal scope of the patent claims. Then, in Graver Tank & Mfg. Co. v. Linde Air Prods. Co., the Supreme Court reaffirmed the applicability of the reverse doctrine of equivalents by clarifying the dual function of the doctrine of equivalents. The case of applying the reverse doctrine of equivalents in American courts shows that in the face of substantive technological progress, the court may apply the reverse doctrine of equivalents to limit the scope of the literal meaning of the claims of the basic patent.#br#This paper makes a normative analysis on the system function and theoretical basis of the reverse doctrine of equivalents, which aims to explore the applicability in China. The conclusion is that the reverse doctrine of equivalents can not only limit the patent literal infringement, balance the interests between the patentee and the improver, but can also be used as a patent policy lever to regulate the technology of different industries protected by patent law on the micro level. The establishment of the reverse doctrine of equivalents is in line with the requirements of patent contract theory for fairness, as well as the proposition of intellectual property tool theory. In order to ensure the effective implementation of the reverse doctrine of equivalents in the context of China's patent system, this paper puts forward suggestions on how to regulate the content of the reverse doctrine of equivalents and how to judge the constitutive requirements of the reverse doctrine of equivalents. The research results of the article have important practical significance for properly protecting improved technology and accurately encouraging innovators to engage in improved innovation. Due to the insufficient research on the reverse doctrine of equivalents in China's academic circles, there is a lack of in-depth analysis of the system function and theoretical basis of the doctrine, and it is rare of reasonable and effective countermeasures and suggestions on how to construct and apply the reverse doctrine of equivalents in China. Therefore, this paper effectively fills the gap of existing research in China.#br#