• Journal of Legislation Research
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• no.41
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• pp.201-228
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• 2011

In 97hu2200, the Supreme Court of Korea suggested five requirements to apply the doctrine of equivalents, i.e. identity of problem-solving principles, interchangeability, ease of interchangeability, exception of known arts and file-wrapper estoppel. There have been arguments on whether the standard of ease of interchangeability could be regarded as the same as the obviousness standard in deciding patentability. The side who thinks that they are different (hereinafter, the side of difference) considers that the standard of ease of interchangeability is narrower than the obviousness standard. This side criticizes the side who thinks that they are the same each other (hereinafter, the side of the same) on the reason that doctrine of equivalents can be overly expanded. On the other hand, 'the side of the same' argues that every accused invention having no inventive step from the perspective of the patented invention should be considered to infringe. 'The side of the same' points that if the standard of ease of interchangeability is considered as narrower than the obviousness standard, 'grey area' should exist where the patent law cannot work. The difference between the two side may cause contradictory results in the decision of infringement under the doctrine of equivalents. Because 'the side of difference' construes claims narrowly than 'the side of the same,' an accused invention in the grey area is not regarded to infringe. 'The side of the same,' however, considers the accused invention to fall into the scope of the patent under the doctrine of equivalents. This paper concludes that the standard of ease of interchangeability should be regarded as the same as the obviousness standard from the perspective of economics of innovation.

• Asian Journal of Innovation and Policy
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• v.7 no.3
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• pp.606-624
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• 2018

Patent infringement is defined as implementing a whole patent product without authorization, which is called literal infringement. However, the alleged infringer sometimes does not directly produce the same product with the patented invention, but they simply replace some claimed elements with new materials, or they only produce a certain part of the patent product. Therefore, there is an issue on whether the above cases should also be deemed as patent infringement. This paper uses specific cases to analyze the formation and development process of the doctrine of equivalents and indirect infringement theory in Japan. Then, by discussing the interpretation of Article 101 of the current Japanese patent law, this paper makes it clear that whether it constitutes direct or indirect infringement in some particular cases. The objective of this paper is to clarify the specific requirements of patent infringement under Japanese patent law by case studying and comparing with the patent legal system of China.