Doctrine of Equivalent Poses a Risk to TRIZ-Based Patent Circumvention?
Posted: 7 Nov 2018
Date Written: October 8, 2018
Patent circumvention is about substituting certain features encapsulated in claims of a patent without infringing the patent, yet fulfilling the same function to achieve the same results. This paper introduces the main steps of using TRIZ tools (i.e. function-oriented search, function analysis and trimming) and related terminologies to circumvent patents. Although the doctrine of equivalent (DOE) and prosecution history estoppel (PHE) are used to limit the substitutional approach in circumventing patents in the USA and other common law countries, its limited application and availability of PHE to the Malaysian patent law system open ample opportunity for competitors to do otherwise here. This paper is expected to be useful to Malaysia inventors to appreciate the concept of DOE and PHE when circumventing their competitors’ patent.
Keywords: Patent Circumvention, Doctrine of Equivalent, Prosecution History Estoppel, Function-Oriented Search, Trimming, Malaysia
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