Study On Defense To Patent Infringement

The patent system is initially established for the purpose of protecting the patentee's interest."The patent system added the fuel of interest to the fire of genius", which makes the stimulation mechanism of the patent right be fully represented. But the aim of the patent system is to protect the public interest of the society. So, while protecting the patentee's individual interest, the related regulation and restriction mechanism should be set up so as to realize the equilibrium and coordination of individual interest and public interest. In the initial stage of setting up our country patent system, it is essential to put more emphasis on protecting the patentee interest, which will be facilitated in encouraging innovation. But by the more than twenty years'development, the construction of our country'patent system has already made great progress, and the integral level of the patent right protection has already reached the certain height. At this moment, it seems very essential to emphasize on protecting the public interest of the society.This paper attempts to discuss the law issues related to patent infringement, for the purpose of the wholly social interest, and from the accused infringer's perspective (including from the public's perspective). This paper analyzes the system of patent infringement and defense in our country at present, and the existing problem, and put forward the corresponding countermeasure and legislative suggestion at the same time.This paper divides into three chapters as follows:Chapter one deeply examines the composing elements and definition of patent infringement so as to make the adequate preparation for analyzing the reasons for the defense to patent infringement. In this chapter, there are four sections: Section one expounds the concept and characteristic of the patent right, and the property of patent law; Section two describes the composing elements of patent infringement, and expounds its characteristic distinguishing from the general tort; Section three describes the definition of infringement of invention patent and utility model patent, expounds how to confirm the scope of patent protection according to the patent claim and how to apply the full coverage, equivalence and redundant appointment principle to determine the establishment of patent infringement and analyze whether to perform the dependent patent constitutes the patent infringement; Section four discusses the question how to define the infringement of design patent.Chapter Two analyzes the contents of the defense to patent infringement, based on the domestic and foreign legislation, various views and theories. In this chapter, there are six sections: Section one, defense analysis of patent invalidity, expounds the legislative basis, the legislative aim, the reason why the patent is invalid, and the problem in the trial at present; Section two discusses the statutory criteria not regarded as patent infringement. Combining with the Article 63 of"Patent Law ", I carry on the jurisprudential discussion and application analysis for such issues. Section three, defense analysis of time limitation on damages, introduces the general principle of time limitation defense applied in the patent litigation, and expounds how to define the patent infringement beyond the two years'time limitation; Section four expounds the concept, significance, applicable scope and the concrete application of the free common knowledge defense; Section five discusses the concept , significance , applicable scope and concrete application of the estoppel defense; Section six, contract defense analysis, analyzes the feasibility of contract defense according to the relevant judicial interpretation and civil law principle.Chapter three analyzes the defect that exists on the defense to patent infringement in our country at present, and proposes some legislative and judicial suggestion, including formulating, perfecting the relevant laws and regulations , and preventing from patentee's right abuse; setting up judicial review power for patent invalidity decision in the lawsuit of patent infringement; and strengthening the understanding of international convention of the intellectual property right, and actively participating in enactment and amendment of the international convention of the intellectual property right.