The Research On The Demurring Of Patent Infringement

After our country's patent law was amended twice, the scope of protection of patent, protection standards, the amount of compensation for tort and enforcement for judgment are basically up to the standard of TRIPS, make the standard of protection for patent in our country increase fast. In fact, not only the rights of patent holder should be protected, for the infringer in the lawsuit of patent tort, its rights of demurring should also be protected. When the patent holder use their rights, they may abuse their rights, in this case, the reasonable and legitimate demur of the infringer should not only help the court find out the facts and make fair judgments to the infringer charged with patent tort, but also help to limit abuse of patent right which would do harm to the benefit of others or the public.It is presented that the demur to patent infringement refers to the contradicting reasons which prove the non-existence of the plaintiff's claim in allusion to the complainant's claim. The contradicting reasons on patent infringement analyzed in this thesis refer to the acts and reasons which the accused infringing party raises against the petition of the applicant or patent owner in the patent infringement. These facts and reasons include that himself dose not constitute an infringement, that he possesses the statutory demur.Patent infringement demur of the statutory exemption include exhaustion of patent rights, prior user rights, temporarily passing through, specifically experimental use, liable applications, etc. And the infringer in the lawsuit could demur for the facts and reasons include declaration stating the patent's void, doctrine of estoppels, wildly-known technology plea and principle of superfluity establishing, etc.There are some shortcomings and something can be improved in our country's patent infringement defense system, especially in regulating abuse of patent rights. To regulate abuse of patent rights, many countries practices on anti- monopoly law. When drawing on the experience of foreign countries, it is important to concern how to design appropriate details of the system can be more suitable for our country's actual situation. Currently, it is appropriate to amend the patent law at first, and then gradually transition to the division in collaboration with anti- monopoly law regulate abuse of patent rights.It is the theoretical value of this thesis that the thesis analyzes the contradicting reasons form point to point, puts forward suggestions and points out disadvantages of the defense system, provides academic material for the perfection of domestic patent law and patent system in allusion to current situation of legal problems raised in defense to patent infringement in China through more intensive and systemic research on defense to patent infringement.