On The Trotting & Demurer Of Patent

Patent, as a kind of monopolistic right, reflects patentee's important request in benefit after getting patent. Law of patent in China and lots of countries in the world draft rules in details in cognizance and sanction to patent tort. Which shows the strength of protection to legal rights and interests of patentee. At the same time, in order to prevent patentee from abusing patent and unlawfully exercising rights, a series of measures have been made in many aspects to restrict exertion of the right. In order to delimit rightly the patent tort and use properly main content for demurring patent tort the article discusses the law foundation of demurring patent tort analyzes the shortages in the problem of demurring patent tort, and simultaneously gives relevant legislation suggestions and strategies. The first part mainly introduces the basic theory of demurring patent tort and subscribes the concept, composing elements and categories of patent tort, meaning of demurring patent tort and cases of demurring patent tort often found in civil field. The second part manly discusses the four primary main contents of demurring patent tort. They are:1) the main content of influencing the patent force, including patent invalidation and no abusing patent; 2)the legal main content not regarded as patent tort, including depleting principle, peruse right, temporary pass, and well meaning use and sale for the third party and scientific experiment; 3)demurring main content equal to patent tort, including no pull back principle and demurring in technology of free common knowledge; 4 ) other demurring main contents, including prosecutionright and litigation prescription system. The third part gives relevant legislation suggestions and strategies in three aspects in the light of the shortages of demurring patent tort. These suggestions and strategies are: 1) constitute law of anti-monopolization imitating countries that have advanced legislation of intellectual property rights to prevent patentee from abusing his rights; 2) smooth the way of administrative law execution of patent and delimit properly the bounds between administrative law execution and judicial review; 3)strengthen imitational communication and academic discussion in demurring patent tort and increase the strength of being in line with the world.