A Research Of Prior Art Defense

The patent right, which is granted by law, could endue inventors with monopoly right on their creative achievements. It also could promote the development of technology and the transformation of productions .In the meantime, the patent system should restrict the patent right to keep balance of the interest between patentees and the public. This article is focused on the prior art defense, which is a reasonable limitation on the patent, and is formally brought into law in China till the"Patent Law Amendment (3)"became effective on December 27th, 2008.This article mainly includes four parts.The first part discusses the basic theory of the prior art defense, including the concept, the value and the legal regulations in China.The second part discusses the application scope of the prior art defense, which is the difficulty of this article. We could arrive a conclusion that the prior art defense should be widely used in China through the discussion and comparison of the relative defense theories in Germany, Japan, and the United States.The third part deep discusses and analyze the application rules of the prior art defense, which includes the application condition, comparative sequence, comparative methods, comparative standards, rules of evidence and legal consequences. This part is the emphasis of the article.The fourth part discusses the relationship between the prior art defense and the equal principle, forbidden regretted principle,the right of prior use. Such study is significant for us to get a deeper understanding of the prior art defense.