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Contents
1. What is a patent infringement report?
2. What is the process of patent infringement determination?
3. What is the process of patent appraisal service?
4. Conclusion
1. What is a patent infringement report?
Whether a patent infringement is established or not depends on whether the patentee can prove the existence of the infringement. Both the infringement itself and the determination of the infringing object depend on the evidence presented by the patentee to prove it. The "patent infringement appraisal report" is a common evidence.
Depending on the source, the "Patent Infringement Appraisal Report" may be an appraisal or a document type of evidence, which is introduced as follows:
A. Identification
(1) The court drafts an appraisal report ex officio:
This type of appraisal is called entrustment appraisal, which refers to the appointment of an appraiser by the court to conduct the appraisal, and the appraiser needs to express "special rules or rules of thumb" in court according to his professional knowledge or skills and experience to assist the judge in making judgments.
The appraiser may be a natural person, legal person or institution. In patent litigation, the court often appoints a legal person appraisal agency to prepare a patent infringement appraisal report.
(2) The court conducts an appraisal at the request of the parties:
The court may conduct an appraisal at the request of the parties, and the court shall, when necessary in accordance with the law, order witnesses or parties to provide the materials required for the appraisal ex officio or on the basis of the claim.
B. Documentary evidence
Documentary evidence is a statement or opinion written on a document as evidence. Before or during the commencement of patent litigation, the parties may seek the unit recommended by the court to conduct patent infringement appraisal.
In addition, the Instrument is divided into an Inquest Instrument and a Reporting Instrument. The "patent infringement appraisal report" presented by the parties should be a "reporting document" because it cannot produce legal effect and is only an infringement judgment of the appraisal unit. Therefore, the patent infringement appraisal report does not have "substantive evidentiary force" because it has "formal evidentiary force".
●Formal evidentiary force: The "patent infringement appraisal report" presented by the parties must indeed be produced by the appraisal unit, and the statement of the content must be able to prove whether the patent infringement is established or not. In addition, the content of the report should include an explanation of the claim, an analysis of the infringing substance, and a comparison of the elements of the claim and the infringing item, etc., so as to provide the court with discretion.
C. Witnesses
For example, testimony from experts, papers or writings, etc. Therefore, inventors and patent engineers may also be witnesses.
D. Inquest
It refers to whether the judge personally determines whether the relevant facts are true based on the perception of his five senses in the determination of patent infringement.
●Conclusion
The patent infringement appraisal report may be "documentary evidence" submitted by the parties, or it may be an "entrusted appraisal" made by the court on its own initiative; "Witnesses" or "inquests" are substitutes for patent infringement appraisal reports.
2. What is the process of patent infringement determination?
"Patent right" grants the patentee the right to enjoy the exclusive effect conferred by law within the period of validity prescribed by law, and except as otherwise provided by law, it may exclude others from manufacturing, offering for sale, selling, using or importing the patented article, or using the patented process without the consent of the patentee, otherwise the patent right will be infringed. The key to determining whether a patent is infringed is whether the "article" or the "method" of the patent at issue manufactured, offered, sold, used or imported by another person falls within the scope of the patent at issue. In the event of a patent infringement dispute, the parties will conduct a patent infringement appraisal to confirm whether the infringement is established.
The patent infringement identification process is as follows:
(1) Explain the scope and technical content of the patent application
To identify patent infringement, it is necessary to first explain the scope of the patent application (Claim Construction) and analyze the technical characteristics of the patent application scope to reasonably define the scope of the patent right. At the same time, it is also necessary to analyze the technical content of the object to be identified.
(2) Compare the scope and technical content of the patent application
A. Analyze the technical characteristics of the scope of the patent application
B. Analyze the technical content of the object to be identified
C. After analyzing the technical characteristics of the scope of the patent application and the technical content of the object to be appraised, it shall be compared in order as follows:
(a) Based on the all-elements rule / all-limitations rule, determine whether the object to be identified conforms to the literal reading
◆The "all-elements principle" means that each technical feature in the request item fully corresponds to the expression (express) in the object to be evaluated.
In the examination at this level, it is necessary to confirm whether the literal meaning of the technical features in the scope of the patent application after the interpretation fully corresponds to and is expressed in the object to be evaluated.
(b) Based on the principle of all elements, determine whether the "equalization theory" applies to the object to be evaluated
◆ "Equality":
That is, based on the position of protecting the interests of the patentee, to avoid others from making minor non-material changes or substitutions to the technical features within the scope of the patent application, so as to avoid the liability for patent infringement.
Since it is inherently insurmountable to describe the scope of the patent application accurately and completely, the scope of the patent right may be extended to the equal scope of the technical features of the patent application, and should not be limited to the literal scope of the patent application.
When the object to be appraised conforms to the literal reading, and the defendant claims to apply the theory of inverse equality, it should be compared to whether the theory of inverse parity is applied to the object to be appraised.
◆ Inverse Equality Theory (also known as Negative Equality Theory):
That is, in order to prevent the patentee from arbitrarily expanding the literal scope of the patent application, the literal scope of the patent application is restricted. If the object to be identified has been covered by the literal scope of the patent application, but it uses substantially different technical means to achieve substantially the same function or result, the "literal reading" is blocked, and the object to be identified does not fall within the scope of the patent (literal meaning).
If the "equivalence theory" applies to the subject to be evaluated, and the defendant claims the application of "estoppel" or "prior art block", it should be compared with whether the "estoppel" or "prior art block" applies to the subject of evaluation. (The defendant may choose one or both to assert the application of estoppel or prior art blocking, and there is no precedence between the two when judging.)
◆ "Estoppel" (also known as "Application for Historical Estoppel"):
That is, to prevent the patentee from using the "equalization theory" to assert matters that have been limited or excluded from the patent application to any stage of the patent right maintenance process or in any document.
The scope of the patent application is the basis for defining the scope of the patent right, and once published, anyone can obtain the documents at each stage of the application to the maintenance process, and based on the reliance on the additions, amendments, corrections, reinstatements and defenses made by the patentee in the process, the patentee is not allowed to assert the matters that have been originally limited or excluded by the "equalization theory". Therefore, estoppel may be a deterrent to the "theory of equality".
◆ Prior Art:
It covers all information available to the public before the filing date (or priority date in the case of a priority claim), regardless of location, language or form (e.g., written, online, oral, displayed or used, etc.). Prior art is a public good that can be used by anyone, and patentees are not allowed to expand to include prior art through the "equivalence theory". Therefore, "prior art obstruction" can be the cause of "equivalence".
(1) If one or both of the "estoppel" or "prior art resistance" applies to the object to be evaluated, it shall be judged that the object to be identified does not fall within the scope of the patent right.
(2) If the subject matter to be evaluated does not apply to the "estoppel" or "prior art resistance", it shall be judged that the subject matter to be appraised falls within the scope of patent right (equality).
If the "equivalence theory" applies to the subject matter to be appraised and the defendant does not assert the application of "estoppel" or "prior art block", it should be judged that the subject matter to be appraised falls within the scope of patent right (parity).
3. Patent appraisal service process 
4. Conclusion
Patent infringement identification involves professional knowledge and legal judgment, and our professional team has extensive practical experience to identify infringements, provide legal basis, and propose effective countermeasures to protect your patents and avoid potential losses. With professional identification and assistance, you will be able to gain a firm foothold in handling infringement cases and litigation, protect your rights and increase your chances of success.
We, Lewis & Davis Patent Attorneys Office, are able to provide you with the best protection for your patents and intellectual property rights. If you would like to know more about intellectual property protection, please contact us.