The Application Of Prior Art Defense In Patent Infringement Disputes

With the further deepening of economic globalization, patent strategy has become the main weapon in international competition. When developed countries have been able to skillfully use the patent system, there is a large gap between China and those countries for legislative, judicial and administrative enforcement. In recent years, domestic enterprises are challenged by foreigners using patent infringement proceedings. However, abuse of patent complaints and reduction of infringement cost coexist. How to maintain the balance of interests of all parties, promote market prosperity and technological progress is worthy of further study.Prior art defense has a very important position in patent infringement disputes. However, there is still much controversy about the application of it. Starting from the basic theory, this paper summarized the existing problems through the study of application of prior art defense, including the development of legislation and cases. Combined with comparative law studies, this paper analyzed these problems and gave specific recommendations. Prior art defense can impede the constitution of patent infringement which based on the existence of harmful consequences, illegal behaviors and causality. And it can make the result of direct denial of existence of harmful consequences for the purpose of keeping balance of interests of all parties, promoting market prosperity and technological progress. The existing problems are about three aspects, namely, the scope of prior art, the application scope of prior art defense and the comparative method. About the scope of prior art, this paper suggest that interference applications be included but technologies within grace period not. And different kinds of patent are able to be prior arts for each others. About the application scope, it need to be clear that prior art defense is suitable for literally infringement. About the comparative method, there should be two steps. First, compare the patent and the charged technology, stabilize the features within the scope of patent protection. Then, determine whether these features have patent validity according to the prior arts. However, methods should be settled to make sure that two not be too complicated. For example, make limitation of the number and the technology domain of the prior art documents, and indentify the establishment of defense only when those technologies are very close.