原來還有人主張「必要」是“非必要”的

常常和同事吵“必要”和“非必要”，今天看到這篇文章，覺得還真是有趣，而且“感到興奮”，自己所支持的想法得到了支持。

來自於這一篇文章（按一下）：
Infringement analysis

In respect of the comparison of an alleged infringing product or process with the patent as claimed, a principle reminiscent of the all-element rule applies in which all the essential elements as recited in the claim need to be found therein. A principle similar to the doctrine of equivalents is also proposed whereby a claim that does not literally read on an alleged infringing product or process may still be found to be infringed if equivalent technical features are found therein upon analysis.

However there is also an important new concept in infringement analysis under the suggested principle of "unnecessary recitation" in which elements or limitations explicitly recited in an independent claim may be deleted by the court if they are viewed as obvious and redundant features that do not contribute to the essential function of the claimed product or processes. In evaluating whether a feature is "redundant", Part 50 of the guideline suggests the following consideration:

Is the feature under consideration one that distinguishes the claimed invention from prior art products as of the priority date, that is, whether the deletion of the feature under consideration would render the claim lacking in novelty or inventiveness as compared to the prior art;
whether the feature under consideration is essential for the functioning of the invention to achieve the solution of the technical problem to be solved; and
whether the technical feature under consideration falls under the principle of prosecution history estoppel.

The guideline further states that the court should not apply this principle of unnecessary recitation according to its own initiative, but rather apply it based on evidence produced by the plaintiff and by application thereof. Parts 50 and 53, however, caution that the application of this doctrine is more suitable for invention patent rights and should not be applied to the infringement analysis of utility models with relatively low inventiveness.

法院不應自行開啟適用“非必要”元件的主張，而且也不適用“新型”專利，因為新型專利的進步性考量較低。

Although this guideline contains a suggestion that may render claim scope uncertain and ambiguous, such a detailed suggestion is a step in the right direction towards in-depth infringement analysis. Time will tell whether these proposed principles will be adopted on a broader basis and whether the uncertainties introduced will be reconsidered and removed as the judicial development progresses.

「render claim scope uncertain and ambiguous」是非必要主張的缺點，不過把它捨棄的話似乎不合“公平”，我覺得如果給它比“均等論”更嚴格的適用條件，對“不懂專利”的個人發明人而言，應該是一個保障。