Prior Art Defense Study Based On Presumed Validity Of Administrative Action

The rule, called prior art defense, come from court trial practice. When the accused technology of patent infringement is considered as a kind of prior art, the court will allow the accused aside implement the technology freely. To a certain extant, it will reduce unnecessary litigation procedure and improve the efficiency of solving disputes. After the third modification process, The Patent Law adds a clause of prior art defense and gives legal recognition to it, but there are still some problem in practice that require further improvement, especially on the model of the legislation and the application of the rule. This paper tries to investigate the legislative theory and judicial practice from the perspective of presumed validity of administrative action, offer relevant improvement policy and proposal.Firstly, this paper elaborates the theory of presumed validity of administrative action and its implementation on court trial practice on patent infringement. Then this paper analyses problems and controversies existing on the application of prior art defense. These problems and controversies include direct legal grounds and legal principles on judicial precedents, technology comparison relationship, scope of application, and patent marking right protection. In view of the existing legislation mode,conflicts exist between prior art defense and the theory of presumed validity of administrative action, tort judgment rules of"surrounding patent right". At the same time, this paper studies the application of prior art defense abroad. Foreign theories indicate that Patent infringement trial courts can not narrow the literal protection scope of patent right. It shows that prior art defense is coordinated with the theory of presumed validity of administrative action and tort judgment rules of"surrounding patent right". Overseas application rules on prior art defense are coordination with themselves legal system. Our country shouldn't simply copy the practices coming from foreign countries. Finally, this paper point out that our country's legislation thoughts only try to coordinate the conflicts between two sorts of private rights, patent exclusive right and public interest, but ignore the fundamental conflicts generating between public power and private rights. Also, there is no any indication that the legislators plan to coordinate the fundamental conflicts.Therefore, this paper point out an theory called patent right elasticity function. Then, the assumed theory proves feasible through invoking conditional administrative action. Based on the patent right elasticity function, this paper puts forward the logic and new model in the process of the application on prior art defense.