Demur Of The Defendant In The Suit Of Patent Tort

Patent is a kind of document issued by government according to requisition, which endows the originator or the alienee with the monopolization or exclusive right of the invention in a certain fixed number of years. The tenet of exclusive law in each country is to prompt the development of the technology by the patent right of the originator in limited time. It embodiments the balance between the benefit of the patent obligee and the public, that is, the patent system, on one hand, should protect the interest of the person owned patent right. On the other hand, it should avoid abusing the right, damaging the interest of the public and hampering the development of technology. With the great change of the world economic and commerce situation, the current of patent system internationalization is more distinct, and the protection of the knowledge property right is paid more and more attention all around the world. In this background, the TRIPS came into being. The protocol emphasizes the protection of the knowledge property right. At the same time, it begins to pay attention to the balance of the protection of the patent right and the prevention of the right abuse .In the recent twenty years, the patent system in our country has been developing and consummating, and patent dissension has become more and more. According to the statistics, the courts all around country had accepted and heard more than 16000 cases about patent knot from the year 1985 to 2004, in which patent approaching knots account more than 80%. Many courts are partial to the person owned patent in the inquisition concerned to the patent tort lawsuit. At the same time, there are some fake patent and impotence patent in patent authorization, especially in our country, the application of the utility new pattern patent and appearance design patent won't undergo essential censor, which induces that some utility new pattern patents and appearance design patents that fall short of patent law apply to gain patent right. Therefore, as the accused side, if there was no approaching action actually, they should demur powerfully, or else their interest would be damaged. The main content of demurrer and its standard and measure in idiographic implement are different fromcountry to country about the law prescript of patent approaching demur and judicature practice.In the paper, the demur of the defendant in patent approaching lawsuit is the object, which is studied and analyzed from several facets. There are five chapters in the paper. The first chapter starts with the basic problem in the patent approaching lawsuit, summarizes the basic definition and character of patent, patent right and patent approaching action and briefly introduces the cognizance of the patent approaching action and demur theory. The second chapter analyses the philosophy base of the patent approaching demur system, mainly according as the balance theory in the labor doctrine and inspirit theory of Locke . Besides, the reality sense of the patent approaching demur system is discussed. The third chapter generalizes and summarizes the theory and practice of patent approaching demur in the U.S.A and Japan. The forth chapter expatiates the typical demurs for patent tort in our country. The fifth chapter proposes countermeasure against the performance defeat of our country in patent tort demur, including the content of legislation principle, legal incident, and enforcement practice). The sixth chapter proposes the advice and countermeasure based on the deficiency about the patent approaching demur problem. The purpose of the paper is to provide reference in the defendant demur of patent approaching lawsuit in our country, which has reality meaning.