Research On Prior User Rights Defense In Patent Infringement Lawsuit

Patent system is called by the former U.S. President Lincoln as: "The patent system added the fuel of the interest to fire of genius." and also the first intellectual property system to be recognized and established by legislators. The fundamental aim of patent system is to promote inventors opening inventions to the public in accordance with the law through the way of patent-pending, the results is benefits the public and the law also provides the exclusive right of the inventions to the inventors to enjoy benefits in a certain period of time. Promoting economy, science and technology sustainable developing based on the balance of interests.Therefore, in the researching process of how to protect the patent right, the prior user right emerged based on the interests balance between individual and society.The Provision of Prior user right in our nation is merely specified in Section 2of Article 69 in PRC Patent Law as follows: Where, before the date of filing of the applications for patent, any Person who has already made the identical Product, used the identical process, or made necessary Preparations for its making or using, may continue to make or use it within the original scope only not be deemed an infringement. The so-called prior use right refers to before the date of product or method in the patent application (the right to have priority is the priority date) ,sincerely and trustworthily manufacture the same products as the patented products or use the same methods or done serious preparations for so doing, according to the Patent Law, the prior user could continue to use his inventions and not be deemed an infringement.The establishment of the prior right is very necessary and has great practical significance. Practice in the administration of justice, a growing number of disputes relating to the conditions and restrictions of prior use right. Because of general and vague of the《Patent Law》on above conditions and restrictions, results in substantial questions and controversies in judicial practice. For example, whether or not to use technology can be derived from others? What the judgment of made or done serious preparations? What the original scope refers to? Is the quantitative criteria of "original scope" reasonable or not? And so on.In order to solve above issues and balance benefits between individual and society. This article is divided into five parts to analyzed and discussed these problems existed in prior user right systemIn the first part, simplely introduce the case Zhonggao Company charged by Wangxiaozhong,Zhixing Company in Patent Infringement Pointed out the focus------Whether the defendant enjoy the prior user right or not and the extent of the scope. Leadsto the main issues discussed in this paper that the establishment conditions and restrictions.In the second part, introduces the basic theory of prior user right system. First introduce the relevant legislation and the relevant theories in our country, showing the writer's opinion. Then introduce the relevant theories aboard. To provide the perfect reference.In the third part, detailly analyze the nature of prior user right. First introduced three perspectives. First, an independent right. Second, an defensing of right. Third, a prior using.Proposing writer's opinion------an independent right based on comprehensive analysis. To laythe groundwork for discussing conditions and restriction below.In the forth part, discussing the four conditions of enjoying prior user right. The conditions are time, geographical scope, technical resources, and the judgment standard of made or done serious preparations. In addition, there are two restricted conditions in implementation. First is implementing only in original scope, the second is the type of act that can only "continue to manufacture, use." Doing analysis combined with case.In the fifth part, pointed out the status and problems of prior user right in our country. Put forward more scientific and reasonable view and suggestions.To sum up, comprehensively use analysis methods of comparison,practice,law explain and other methods based on objective and detailed analysis. Reference to the theory and judicial practice at home and abroad industry on these issues, combined with case put forward constructive comments and suggestions for questions existed in patent infringement.