The Study Of Basis For Patent Infringement Defense And Reference For Patent System

China's patent law stipulates that without the permission of the patentee, no unit or individual is allowed to apply his or her patent. Patent is an exclusive right. Law's protection of the patentee's legal rights reflects our country's encouragement of the intellectual creative activities and push of the science advance, for the purpose of increasing our social wealth. However, if patent exclusiveness is ill used it will inevitably limit his or her competitors'development and weaken their competitiveness, thus forming monopoly within a certain field. This requires us to study how to make use of law to balance interests of various kinds. We should, on the one hand, attempt to protect the patent's interests with law and to compensate his or her creative activities rationally. We should also, on the other hand, take the public's interests into account, by using law and system to restrict the patent's desire to hinder and limit his or her competitors'competitiveness and development. The patent laws of different countries justify the inventors'and the creators'exclusive possession over their intellectual achievements and, meanwhile, limit the exclusiveness from several aspects. The defense of patent infringement lawsuit system and patent system accompany one another in order to keep a balance between them.This paper takes patent invalidation defense, free Widely-Known Technology defense, prior right defense, and extinctive prescription defense as study objects. It applies comparison jurisprudence, acts analysis and positivist jurisprudence. By comparing and analyzing the similarities and differences of the typical demurs for defense of patent infringement between our country and other countries legislatively, judicially and theoretically, and by learning from the successful patent system of foreign countries, this paper attempts to solve the problems existing in our judicial practice, to put forward good ideas for the typical demurs for defense of patent infringement on legislature and judicature, and to make a rational supplement to the defense of patent infringement system, for the purpose of better adapting into the situations at home and abroad. This paper consists of the basic theories of defense of patent infringement, the related legal problems and current situations of the typical demurs for defense of patent infringement, the construction of a perfect defense of patent infringement system and the final part of conclusion.The first part introduces the connotation of defense of patent infringement and the concrete implications of four types of the typical demurs for defense of patent infringement, and fully explains the practical significance of defense of patent infringement system. Nowadays, globalization is already a developing trend in the world economy. The competition is becoming more and more intense between enterprises and between nations. Whether a patent system is sound or nor has an increasing effect on the interests of different countries. It is essential to establish a set of effective and practical defense of patent infringement system within a patent infringement lawsuit, thus helping make a balance of the interests between the patentees and the public. A great many invalid patents exist within the patent infringement lawsuit. The defendant should make a thorough analysis of the plaintiff's charged facts and excuses, and actively seek ways to maintain his or her rights and interests by legal defense, and to avoid the defendant's loss of reputation and property. After China entered the WTO, we must face the patent debates, emphasize the perfection of defense of patent infringement system, cultivate an expert class of mature patent strategies, underline studies and make good use of patent strategies, in order to safeguard the interests of our country and our enterprises. Only by this, can our nation and our enterprises take a favorable position in the world economy, and science and technology.The second part introduces the legislative aim, the legal demur the validity and retroactivity of defense demur, and the lawsuit procedure of patent invalidation defense. It points out the shortcomings of invalid patent infringement defense system. The patent law in our country is too harsh to the patentee in the part of invalid patent excuses, which needs further improvement. Meanwhile the court's announcement of patent invalidation by indirect trial poses some problems in practice. Within the patent invalidation lawsuit, the separation of the interests between the defendant and the parties causes the waste of lawsuit resources, and affects trial efficiency, resulting in imbalance in whether to suspend infringement lawsuit trial. At last, it briefly introduces the patent invalidation defense trial pattern of America and Japan for us to learn from.In the part of free Widely-Known Technology defense, the author introduces the definition, the theoretical base, the legislative significance and the applicable conditions of free Widely-Known Technology defense. By an introduction of concrete cases, the author also introduces the application of free Widely-Known Technology defense in our country. Presently three different kinds of applicable views exist within free Widely-Known Technology defense in our country. They are the complete denial of the applicable free Widely-Known Technology defense cases, the absolute approval of the free Widely-Known Technology defense cases and of the partially applicable cases. This explains free Widely-Known Technology defense badly needs the clarification of legislature. Finally the Japanese free Widely-Known Technology defense is introduced to benefit us.In the part of prior right defense, the author gives a general description of prior right's connotation, its legislative value and its applicable range. Great differences exist over the applicable range of prior right, between our country and foreign countries. Currently the judges of our country set a qualification limit to the original range of prior right while most of the foreign patent laws do not require such a qualification limit. They generally believe that within the original production management, the prior user has the right to expand the implemental scale of the prior use. They also believe that the prior users should not be confined to the implemental scale before the applying date. By comparing our country and other countries, the author believes that it is much better not to set a qualification limit to the executive range of prior right within our country's patent legislature, that the prior user should be allowed to expand the implemental scale rationally within the original production management, and that the prior user should not be confined to the implemental scale before the applying date or prior right date. All these measures will help achieve a balance of interests between prior users and patentees.In the part of extinctive prescription defense, the author briefly introduces the identification of the beginning date of patent infringement praescriptio, the law consequences and the judgment of continuous infringement praescriptio. Taking the present American way of dealing with patent infringement praescriptio into consideration, the author raises some legislative suggestions.The third part consists of some immature propositions of constructing a set of sound patent infringement defense system.About patent invalidation defense, the author concludes three practical suggestions as follows. Firstly it should be cancelled to consider the instruction abstract as an invalid excuse. Secondly our patent law has the obligation to establish true statement for patent applicants and patent inventors. The true statement from patent applicants will help reduce false patents. Thirdly our country should endow the courts with direct jurisdiction of patent invalidation. This will shorten the procedure, improve efficiency and also reduce the judicial conflicts between different departments, thus helping consolidate the stability of patent law protection.About free Widely-Known Technology defense, the author raises 2 suggestions. One is to enlarge the source of free Widely-Known Technology defense by legislature.The other is to clarify the applicable range of free Widely-Known Technology defense. About prior right defense, the author maintains that our patent law has the necessity to clarify the source of prior technology, to clarify the limitation over prior right transference and permission, and to clarify the contents of the original range, by means of legislation.About extinctive prescription defense, the conclusion, which is made by the Supreme Court in the"Summary of Intellectual Property Trial Conference in Some Courts", should be confirmed by legislation. Patent infringement poraescription is two years, counting from the date when the patentee knows patent infringement. The patentee sues over two years. If the patent infringement continues and if the patent is still valid, the People's Court should judge that the defendant stop patent infringement and that the compensation should be calculated from the date when the patentee sues, adding 2 years.Theoretically, this paper makes a comparatively profound and systematic study of patent invalidation defense, free Widely-Known Technology defense, prior right defense and extinctive prescription defense. Taking the current situation of the typical demurs for defense of patent infringement into consideration, and learning from the relatively sound patent defense system of other countries, the author analyses these four typical demurs for defense of patent infringement one by one, points out its shortcomings and raises some suggestions. For the present studies of the legal problems of the typical demurs for defense of patent infringement are not profound enough, thorough enough and systematic enough, this paper will be of great significance to the perfection of our patent law and patent system.