What Constitutes Equivalents? Focus on the Doctrine of Equivalents in the US, Germany, and China

Abstract

In patent litigation, the Doctrine of Equivalents favors patentees because it provides them with a broader scope than the literal scope of a patent claim. In contrast, it may harm the interests of the public as well as developing countries. From 2012 to 2017, China surprisingly holds the world’s highest success rate for lawsuits claiming infringement under the Doctrine of Equivalents, while the US and Germany hold relatively low success rates. The success rate ranking from high to low is China (39%), the US (20%), and Germany (8%). This ranking contradicts with people’s impression that China is a country of an IP violator and that Germany and the US are the countries of IP advocators. To find out what would cause the high success rate in China, the thesis compares and analyzes the Doctrine of Equivalents in the three countries in an issue-by-issue manner and see whether any difference can explain the success rate ranking. Further, the thesis explores governmental policies of the Doctrine of Equivalents, which may find out a dynamic interaction between the Doctrine of Equivalents and technological development and may reflect Chinese ambition in the transition from imitation to innovation.

Keywords: The Doctrine of Equivalents, Equivalent Infringement, Equivalency, Patent Law, Patent Litigation, Patent Infringement, Claim Construction, IP Policy, IP History, Imitation to Innovation, Technological Revolution