The Application Of Prior Art Defense In Patent Infringement Case

Prior art defense,which is the unique tort defense rules of Patent law, is the important judiciary that is widespreadly accepted and applied by the international society.The concrete contents means,in the patent infringement dispute,,the accused infringer need not to query the validity of the patent right through administrative procedures,but to present directly in the proceedings and provide evidence of his technical solutions implemented from the public knowledge of prior art,then it can be brought against the holder of the patent infringement complaint,which proved not to set up and from tort liability in the form of a defense.During the two or three decades of vigorous development of China's patent system,Prior art defense also has been widely applied to various types of patent infringement lawsuits nearly ten years.But until 2008 before the Third amendment of the "Patent Law", the principle of Prior art defense has been lack of patent law based on the level.For lack of corresponding legal foundation,this leads to inconsistent implementation of the local courts at all levels.The third amendment of the Patent Law and relevant judicial interpretations of the introduction provide a clear legal guidelines for the application of Prior art defense,but specific operation still needs further discussion.This article is from a typical case of Prior art defense,analyzing the basic facts of the case,leading to controversial cases,mentioning the below.Then,give the elaboration to the general outline of Prior art defense,the notion, principle of law foundation, operation and value etc. and clarify the existing understanding of the basic theory of the rule.The third part of the article is to Germany,Japan,the United States,France and other countries about the development of the Prior art defense principle of simple application condition and induction and introduces, through comparison and analysis,export the fourth part, that the application of the principle of Prior art defense in our country.To review the application of our country,get the conclusion that we should apply Prior art defense completely,Prior art can't contain contravene existing technology application,but includes scheme of simple combination,also includes the patent technology of not involved person,hoping to provide some meaningful judicial practice of Suggestions.