Defense Of Existing Technology

Existing technology defense is principle used by foreign intellectual property community generally. However, our laws are vague, and there are not rich experiences in judicial practice, especially there are not uniformed conclusion for some trials principles emerging in practice. Before the third revision of Patent Law, there were not clear provision in our legislation about existing technology defense, and it was only involved in judicial interpretation. Whether and how to apply existing technology defense, there was big controversial between theory and practice. Article 62 of China's new Patent Law clearly defines existing technology defense, and since then, whether to apply the existing technology defense is no longer the focus of debate. The purpose of this article is to explore the relative principles of existing technology defense and how to improve the defense system, in order to help the trial of patent infringement trial cases.This article has more than twenty thousand words more, and it is divided into six parts.Part one is preface. The case of judicial practice of patent is described. Since the increase of the patent applications, the intensity of patent protection and the awareness of human rights are getting stronger, leading to the rise of patent infringement litigation. Faced with this situation, there are not enough laws and regulations for the judge to refer to. Existing technology defense is one of the varieties of relevant principle in the judicial practice.Part two is the basic theory of existing technology defense. First, the concept of existing technology defense is introduced, and it is also known as "public technology defense" and "prior technology defense" and so on; statement of china applying "existing technology defense" is defined. To discuss existing technology defense, one of the most problems is to figure out what is the existing technology. Next, the existing technology defense is defined and the scope of existing technology is discussed.Part three is to discuss the application the existing technology defense. This is also the focus of this article. It is deeply discussed from the aspects of the scope, the applied methods and the specific rules of existing technology defense.Part four is to discuss the distinction of existing technology defense and other relevant principles. The distinctions of prior right defense principle, estoppel principle, doctrine of equivalents and existing technology defense are compared respectively and their concepts are defined, deepening the understanding of existing technology defense. Part five is to analyze the exception of existing technology defense. The exception of existing technology defense is discussed by the exception of publication of not losing novelty.Part six is how to improve existing technology defense system. Gaps and defects of existing technology defense are analyzed, proposing to improve our system of existing technology defense from the legislation.