Study On Lssues Of The Prior Art Defense In The Patent Infringement Litigation

The prior art defense is a generally applicable principle of intellectual property in foreign coutries. It requires that Prior art should not be falled into the patent technology protection . Otherwise, we have to eliminate the portion of prior art outside the scope of patent protection. It restore the original scope of patent technology protection and return prior art to the public,ensuring balance of interests in patent system. Meanwhile, there are many defect patents which is short of novelty or creativity in our courty. Although the defendant can solve this problem by the declaration procedure of patent invalidity,it require much time,money, effort. It is a great burden. If the defendant can prove that the technology package was belong to prior art when using prior art defense, the court can make non-infringement verdict. The action for patent infringement can be quickly resolved.The prior art defense is an effective means against patent infringement litigation and played an important role in our patent system .Before the patent law is revised in 2008, however, Prior art defense didn't appear in our national legislative documents. Although newly- revised patent law has regulated prior art defense,there are different opinions on the application of prior art defense.Therefore, the author of this paper tries to find solutions to this issue.The paper consists of three sections, including introduction, body and conclusion.In the part of preface, the text firstly introduces some basic theory about prior art defense.Then it explains its writing cause,purpose,and significance.The author hopes put forward his own views on the application of prior art defense by the text.The second sections includes four chapters:In the first chapter,the text analyzes the scope of prior art defense. It firstly Introduces the states and practices on the scope of prior art defense .Then it analyzes the reason of controversy on prior art defense in the same patent infringement.Finally,it conclusion that prior art defense should be fully applicable to patent infringement.In the second chapter , the text analyzes the identification of prior art. It firstly Introduces the definition of prior art. Then it points out that prior art should include free prior art and prior patent. Then it points out that the prior art should be a technical solution alone, but can also be a number of public technology that is combined into a simple technical solution. Finally, the prior art must cover all the technical features of the accused of infringing technology that involved into the scope of patent protection, regardless of other technical features .In the third chapter , the text analyzes the comparison method of prior art defense . It firstly introduces three comparison methods on of prior art defense and paradigm cases. Then it points out that the shortcomings of the " comparison of patented technology and prior art " approach. Then,it analyzes the " prior comparison of accused infringing technology and prior art " approach and the " prior comparison of accused infringing technology and patented technology " approach. Finally ,it points out that generally , the court should firstly compare accused of infringing technology with prior art and regard the scope of patent protection as a reference when using prior art defense. If prior art defense doesn't success, the court then compare accused of infringing technology with patented technology.In the fourth chapter , the comparison standard of prior art defense is analyzed . It firstly introduces the various theories on the comparison standard of prior art defense.Then it analyzes the various theories. Finally , the text points out that "creativity standards" is imperfect and " equality standards" is properThe last chapter is the conclusion of the paper.In this chapter,the anthor sums up the applying in the prior art defense.