Empirical Study on the Doctrine of Equivalents in Taiwan

 

Title
Empirical Study on the Doctrine of Equivalents in Taiwan
Author
Tien-Pang Chang, Richard Li-Dar Wang, Shang-Jyh Liu
Keywords
Doctrine of Equivalents, Triple-Identity Test, Tri-Partite Test, Function-Way-Result Test, Empirical Study
Abstract
The doctrine of equivalents is one of the most difficult and unpredictable doctrines
in patent law to apply. By allowing patentees to gain exclusive right beyond
the literal claims in their patents, this doctrine creates tension between the adequate
protection of patent right and the public notice function in the patent system. Based
on the Guideline for Patent Infringement Analysis proposed by Taiwan Intellectual
Property Office, to determined patent infringement under the doctrine of equivalents,
the Triple-Identity Test should be applied. Under this test, if an accused device
performs substantially the same function in substantially the same way to obtain
the same result as the asserted patent, the device infringes the patent. However,
the information regarding the test is insufficient in the Guideline for Patent Infringement
Analysis. It fails to explain how to apply the test, how to define the
Way/Function/Result, and what the sequence of applying the three factors is. Without these detailed information, it will be desirable for the public to know how the
Taiwan Intellectual Property Court apply the test. This article attempts to review
the practice of the test by empirical study. Especially, this article surveys the patent
infringement litigations in the Intellectual Property Court and tries to analyze the
test implanted in the Court. Besides, this article also provides some comments and
suggestions on the test in Taiwan.
Abstract Article

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