The On Defense Of Prior Art In The Patent Infringement

In the patent infringement case, there is a lot of reference to the case of Prior art counterplead, even before changes in patent law, Prior art does not write into the patent law, the alleged infringer still refer to the subject matter. However, in sharp contrast with the judicial practice, is that theorists of Prior art counterplead issues related to defense has not yet reached a consensus, not only in the basic concept of the existence of different interpretations, but also in the specific application there are many differences. With the Prior art counterplead in patent law is established, it is necessary to clarify the basic concept of Prior art, on the specific operation to sort out the details.The first part of the text is summary of the Prior art counterplead, it is mainly carding this title, content, and relevant case law of the land outside the assessment and development in our country. Changes in patent law before the existence of multiple title defenses available technology, some scholars called the defense of public technology, and some called the defense of freedom of public technology, these statements are plenty of defenses based on existing technology to pursue the substance of a different title, there is reference to the description of foreign law defense known as free technical level. However, the revised patent law, the title to achieve a unified, the new revised patent law is a direct title of existing technology. At the same time,The new revised patent law also clarifies the meaning of existing technical defense, "Patent Law" Article 62 provides: "In a patent infringement dispute, the alleged infringer if there is evidence that the technology or the design is Prior art or Prior designs, it is not enough to be patent infringement." Therefore, the Prior art in the patent infringement defense refers to the dispute, the alleged infringer if there is evidence that the technology or the design is Prior art or Prior art design, the court finds the defendant not enough to become a kind of patent infringement defense means.Defense theory and the theory of Prior art countplead mainly established by German jurists and practitioners. The theory was originally intended to address the separation of powers system, flaws in the lack of novelty patent restrictions. Because in terms of the separation system, the processing of patent infringement litigation and patent court administrative body authorized by a different division of labor, the process of the trial court can not judge the validity of the patent, even if the patent in the defect-free and creative action There will be flaws in the patent and non-equal treatment. Many scholars have advocated that it should be limited, so the resulting current technology defense. Subsequently, Japan also adopted the Patent Law of the system, but the Japanese court in the proceedings more facts into account existing technology, the right to a patent's interpretation by establishing a set of Dute of Panduanshipi tort theory Xue Yue. China draws on Germany, Japan and France related to the system, the judicial practice step by step process of recognition of existing defense technologies, and further confirmed in legislation.The second part focuses on the defense of the legitimacy of existing technology, mainly from the need for both theoretical and practical aspects of argumentation. Theoretical basis for the defense of existing technologies is that the basic principles of patent law, which should only be granted to the patent application prior to the date relative to existing technologies novel invention. According to the basic principles of patent grant should not include existing technology. If the permit includes the right to patent existing technology in action on claims against the perpetrators of existing technology such as the right would violate the basic principles of patent law. Defense of existing technology is the use of the basic principles of patent law.The defense actually did not defect to evaluate the effectiveness of patents, but that defect by the exercise of the rights of the basic principles of patent law is subject to certain restrictions. The reality is reflected in the need to simplify the main proceedings, to avoid the patent invalid caused by cumbersome procedures identified. The third part is the focus of this article, focused on the specific application of existing technology defense. First, the need to address is the identification of existing technology, existing technology, meaning the patentee has already existed in the application of technology, as it has been open and become publicly known technology, lose their novelty. Has been known to the public and did not fall into the scope of any patent protection technologies, existing technologies identified as not disputed, so the criteria for determining the existing technology is the judge have the technology is novel, its recognized standards and the patent examination on novelty judgments were completely identical.Defense in the process of use of existing technologies, the need to determine contrast object, whether it is the cradle of the German defense of existing technology or civil law in Japan, even the U.S. defense-related technologies with existing systems, the process of the courts in most of the alleged infringer and the existing technology for comparison. In our present mode of legislation, determining the validity of patents and patent dispute processing is separate court in patent dispute process should not interfere with the validity of the patent. If the case proceedings, the patent will be involved more with existing technology, which will affect the validity of the identified patents.There is interference by the executive authorities of the suspects. Therefore, in the proceedings only to the allegedly infringing technology and existing technology to compare patterns in our legislation is required. In the proceedings only to the alleged infringer and existing technologies can be compared, without involve litigation involving patented technology, in order to simplify the purpose of litigation. In contrast to the process, as long as the allegedly infringing technology is not new and existing technologies can be found of defense set up, the standard uncertainty can be avoided with the judge in the trial caused by application of different process. Finally, the defense of existing technologies and related issues, is also very similar with the defense of the doctrine of equivalents and the relationship between the principle of estoppel.The third part, a review of the revised Patent Law of the existing shortcomings in terms of technology and defense-related systems with the conflict, first defense mode is unclear, the defense of civil law into substantive law which will affect the judicial practice of the system application. Second, the terms and grace with the system design conflict. Patent law patent on the design time to define the provisions of the absolute unlimited right, which did not give the existing technology contradicts the Yingyong leave any room.Therefore, to improve the patent of the entire legislative system, it should add in terms of design limitations, so that existing technology can be applied to design defense. The paper then pointed out that Article 62 of the Patent Law the direction of the corresponding sound, and finally made the first perfect 62 specific recommendations, according to the legislative intent of existing technologies should choose a defense plea fact pattern, at the same time improve the formulation of article 62 and of the design Terms added restrictions on their rights.