PATENT INFRINGEMENT AND REASONABLE ALLOWANCE OF NEW TECHNOLOGIES IN CLAIM CONSTRUCTION

Abstract

Traditionally, the development of case law and judicial cases focused on whether the determination of patent infringement would interfere with the status of prior art in various jurisdictions. The claim construction is often made according to the characteristics of an invention as distinct from prior art to avoid the determination of literal infringement in order to bring prior art into the scope of exclusive rights admitted by patent law. The defense of prior art is also recognized against the application of the doctrine of equivalents for the same purpose. However, no similar mechanism exists under the determination of patent infringement to deal with the practice of after-arising technologies by the infringer. In other words, a dispute arises when the accuser takes advantage of technologies to infringe upon the patent, which is not seen at the application date of the above-mentioned patent. If the after-arising technologies are unconditionally dominated by the patentee through the assertion of literal infringement or the application of the doctrine of equivalents, the risk of overcompensation to the patentee is possible, which results in opportunities to hinder the policy of technological improvement and cumulated innovation under patent law. However, if it is undeniable that the after-arising technologies are not completely foreseen by the patentee, failure to include these technologies in the claim of a patent should not be attributable to the patentee. This article probes the reasonable allowance of after-arising technologies in the determination of patent infringement. After reviewing the past approaches proposed to resolve the issue of after-arising technologies and patent infringement, this article concludes that the analogous application of the non-obviousness requirement to evaluate after-arising technologies is an optimal model to balance the conflicting interests between the adequate protection of the patentee and the public interest, which would lead tofostering technological improvement and cumulated innovation.