| Along with the science and technology unceasing development and the legislation gradually perfect, the patent disputes are greatly increased. And in these patent disputes, the proportion of patent infringement case is the largest. The court in the trial of the patent infringement case, the key question is judging whether the defendant infringes on the plaintiff's patent right. A good patent system is not for a party to carry out comprehensive, unconditional, and absolute protection, but should be based on the facts and law as the yardstick, justly and objectively on equal protection to both sides. Only then, it can be a better balance between patentee and the public relations, thus contributing to the development of scientific and technological progress and social order. Therefore, in the patent infringement case, when the judge determine whether the action infringe the patent, in addition to giving the patent holder legitimate right to protect their valid patent, gifting the alleged infringer rights against litigation claims of the patentee are also appears very important.Existing technology defense is the most commonly used defense means by the accused infringer in litigation. The patent law in our country existing technology defense means, in the patent infringement dispute, the accused infringer has evidence to prove that its technical or design implementation belongs to the existing technology or existing design, it will not constitute infringement. Although the Article 62 of Patent Law of the People's Republic of China has already been clear about the existing technology defense system, provides a legal basis for the defense act of the accused infringer. But this provision is too simple and general, its explanation is not clear enough for the specific case application. Even the provision conflicts with certain provisions, hampered judicial practice and impartiality and authoritative set.This paper comprehensively uses literature methodology, comparative research, value analysis and empirical analysis, aims at in-depth analysis, interpretation and discussion the existing technologies defense system in theory and practice, and introduces and compares the existing technology defense system of the United States, Germany and Japan, attempts to summarize and extract the existing technology defense system which is suitable for Chinese conditions and conducive to the improvement of judicial practice. The article structure, in addition to the introduction and conclusion part, is divided into four parts:The first part carries on the deep analysis to the basic theory of existing technologies defense system, expounds systematically the relationship between judgment of infringing the patent and defense, concludes and summarizes the concepts and natures of the existing technology defense, demonstrates the legal basis and practical value of existing technology defense system.The second part introduces and analyzes the development, related theories and rules application of existing technology defense system in the United States, Germany and Japan who are the representative nations. It attempts through the comparative study, providing references for comprehensive application of existing technology defense system in our country.The third part briefly introduces the development of existing technology defense system in our country from the theory, judicial and legislative aspects. Then the part focuses on detailed and comprehensive analysis and interpretation of the new Patent Law which added existing defense system, and points out that the current existing technology defense system's merits and deficiencies.The fourth part aims at the third part which has pointed out our current existing technology defense system's deficiencies, proposes optimization measures which are suitable for the development and national conditions of China from clear applicable models, improving contrast rules and eliminate the influence of race period system on existing technology defense system with these two aspects.
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