| Since the implementation of the first "Patent Law" in 1985, the patent system established in china has a 20-year history. In the process of 20 years development, China's "Patent Law" experienced three amendments. As can be seen from this process, china's patent system is gradually promoted to the international standards and to be a sound one. The defense of an existing technology was introduced into "Patent Law" in 2008 after a formal amendment. The application of the defense of an existing technology in our patent infringement litigation is determinated by China's patent system. The registration system is applied to the design patents and utility models, but this system requires only a preliminary review as its examination and verification process, that's means if it found that there are no causes for rejection of the grant of a patent, the patent application will be accepted with the diversity of information retrieval methods, this system will inevitably leads to the grant of the patent application which has been granted and the grant of invention patent, design patent, utility model which falls to meet the requirements of application, but these very patents are flaw ones. The existence of these flaw patents has or will incur patent infringement disputes. As a remedy, the defense of an existing technology in patent litigation has been applied for years in judicial practices in foreign countries, but it is still in an exploratory stage in China.In the present patent infringement litigation, if the defend claim that the plaintiff's patent is invalid, the competent authority will require him to file an invalid application of the very patent with the patent reexamination committee. Only when the reexamination report figured out, can the competent authority proceed with the disputes. However, this process costs lots of time which will postpone the litigation, thus increases the litigation costs of the defendant and wastes seriously the state's litigation sources. For the consideration of the foregoing circumstance, we need to introduce a useful remedy to help the defendant out of his difficult. The defense of an existing technology is such a remedy: when the defendant is fall into such disputes, he could claim it an existing technology rather than apply for the invalid procedure.The defense of an Existing technology has been introduced into Chinese patent law not very long, thus the application of this principle in judicial practice incurs many problems. The judges could not grasp fully the scope of the meaning of existing technology and the application condition as well as the application method of this principle to settle a lawsuit efficiently. So this principle should be subject to the judicial interpretations to make further provisions and explanations. The first part of this article is about the case-"the plaintiff Li Xin, Beijing Yan Sai mobile testing equipment Co., Ltd and Jingjiang Yan Sai testing equipment manufacturing Co., Ltd. v. The defendant Changan testing equipment factory patent infringement dispute". the basic analysis of the case brought out the focal of the case and the text. In order to further analysis the focal of the cases, the second part of the article gave an overview about the defense of an existing technology, elaborated on the meaning and the legal basis of it. The concept of this principle becomes clear after the comparison with several other related principles which could easily lead to confusion. The third part of the article is a brief introduction about the application situation of this principle in Germany, Japan and china. And after the comparative analysis, we conclude that this principle should be fully applied in judicial practice. Part IV focuses on application conditions and application methods of this principle in our present judicial practice, and finally brings out personal suggestions on how to solve the existing disputes. I hope those suggestions will be helpful to the application of this principle in judicial practice.
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