The Application Of Existing Technology Defense In Patent Infringement Cases

In order to limit defect patent and protect the public's right of free usage of existing technology, German has firstly proposed the application of existing technology defense in patent infringement litigation based on its patent infringement disputes and judicial review of the dual-track system. As long as the accused infringer can prove that their technology is an existing technology, he can claim existing technology defense and the accused technology does not constitute patent infringement. Japan, the United States and other countries also develop their corresponding existing technology defense system on the basis of their actual situation.China was first introduced the concept of existing technology defense when introducing the same infringement. Before the amendment of the patent law in 2008, many courts have adopted existing technology defense in patent infringement cases. The provision of existing technology defense has been written in the third revision of the 2008 Patent Law. However, the revised patent law did not apply to how the existing technology provide for the defense. The judge and the scholar have different opinions on the specific application of existing technology defense. Our exisitng technology defense system has to be perfected.This thesis analyzes the current situation of existing technology defense applied in China, analyzes the problems from the aspects of definition of existing technology, its application scopes, comparison sequence and contrast standards to analyze, learns from foreign experience and their applications, and makes recommendations on our existing technology defense trends. Our country should balance the public interest and rights of patent holders, formulate a reasonably practicable existing technology defense system from the definition of existing technology, its application scope, sequence comparison and contrast standards to facilitate the application in practice. The thesis also suggests the authorities provide interpretations on existing technology defense timely to unify our knowledge and understanding on existing technology defense.