The theory of equivalents in Patent Law
Journal Title: Вісник Одеського національного університету. Правознавство - Year 2017, Vol 22, Issue 1
Abstract
In the article there is considered the question of a possibility of creation of the doctrine of equivalents as the strict scientific theory on the basis of the theory of conclusions by A. I. Uyemov’s analogy within which synthesis of the theory of similarity having paramount value for practice of patent work is already undertaken. The invention and its technical equivalents is offered to consider respectively as a prototype and models. It allows transferring to the theory of equivalents of the rule of conclusions on analogies and conditions of reliability (verification) of such conclusions. In this case a conclusion about equivalence of technical solution to some invention can be proved depending on whether necessary and sufficient conditions for recognition of such equivalent are satisfied by model of the considered technical solution, whether there corresponds the model to the prototype and whether allows in this or that capacity to predict model behavior of a prototype. Through fundamental concepts of the theory of conclusions by analogy (the internal and external relations, essential properties, and structure) the explication of the main terms of the theory of equivalents is given: prototype, equivalence, equivalent, law of the nature, function of sign of a formula and technical result. Thanks to it, it is emphasized that modeling of processes in a prototype is based on that, as in model, and in a prototype the same laws of the nature (the technical principles) which possess a certain degree of independence in relation to the correlates that actually explains a possibility of existence of equivalents from the ontological point of view can be carried out. Also it is paid attention that different laws of the nature, being the internal relations, possess different degree of independence of the correlates that narrows or, on the contrary, expands a circle of possible equivalents for inventions from different areas of the equipment.
Authors and Affiliations
A. A. Fedorov
Keywords
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