Doctrine of Equivalents - Harmonization Attempts

Harmonization Attempts

Attempts have been made to harmonize the doctrine of equivalents.

For instance, Article 21(2) of 1991 WIPO's "Basic Proposal” for a Treaty Supplementing the Paris Convention states:

"(a) (...) a claim shall be considered to cover not only all the elements as expressed in the claim but also equivalents.

(b) An element ("the equivalent element") shall generally be considered as being equivalent to an element as expressed in a claim if, at the time of any alleged infringement, either of the following conditions is fulfilled in regard to the invention as claimed:

(i) the equivalent element performs substantially the same function in substantially the same way and produces substantially the same result as the element as expressed in the claim, or

(ii) it is obvious to a person skilled in the art that the same result as that achieved by means of the element as expressed in the claim can be achieved by means of the equivalent element."

The EPC 2000, which came into effect on 13 December 2007, included an amended "Protocol on the interpretation of Article 69 EPC" intended to bring about uniformity at a national level between contracting states to the EPC when interpreting claims. The amended text reads:

For the purpose of determining the extent of protection conferred by a European patent, due account shall be taken of any element which is an equivalent to an element specified in the claims.

However, no definition of what was meant by an "equivalent" was included in the Protocol and it is expected that this lack of a binding definition will do little to achieve the desired uniform interpretation.