Comparative Research On Patent Prior User Right

Patent is a kind of intellectual property right, with strong monopoly effect.Originally, the goal of patent system is to promote the industrial development.However, more and more corporations get patents to beat other competitors bymisusing the monopoly effect of patent, instead of benefiting from it. We can perceivethat if one has used the invention before others apply the same or similar thing to get apatent, he or she will still use the invention after others get the patent. This is so called“the Right of Prior Use” or “Defense of Prior Use”. Therefore we may have aconclusion that the right of prior use (or we say the defense of prior use) can avoidpart of the side effect of patent misuse.Looking back to our patent law system, the right of prior use is regulated inArticle69of Patent Act, and there are still the regulations of effect and range inrelative judicial interpretation. However, there are still gray belts about the character,the elements, the content, and the range. In addition, the judgments about the right ofprior use are not clear enough. So we have to do our best to improve the regulationand judgments about the right of prior use. There are three parts in this paper.The first part is about the domestic legislative status the existed question. This partis started from combing the provisions of patent prior user right in our patent law andrelated laws and regulations. Then this paper analyzes the summary of the rightsnorms and the total factors. At the same time, through a practical judicial case,analyze the scale of the use rights related issues. And based on the above analysis, thispaper pointed out the questions in the system of our patent prior user rights.The second part is about the legislation and practice of patent prior user inforeign legislative system. The selected references in this research are the America, Germany and Japan. This paper tries to analysis the framework and operational detailsfrom two angles, which are rules®ulations and practical views.The third part is about the legislative suggestions of building and improving thedomestic patent prior user right system. This part is the conclusion. On the basis ofcomparative research, this paper summarized the holistic overview of the prior use ofrelative countries and regions. In order to perfect our institution building, this paperanalysis and comb the many core issues of prior use from the theory and practicallevel.The innovation of this paper lies in the coming of theories and the guiding to thequestions. The character，important condition and range of the prior use are the mostimportant questions. At first, referring to the character of the prior use, we could jumpset thinking of rights typed, and pay more attention to the positive aspects, such as theinherency, non-exclusivity and transferability; secondly, referring to the importantcondition, the identity judgments could borrow the patent infringement verificationstandards, and we also have to regulate the subjective element of goodwill strictly, inorder to get rid of people with bad intent asserting the right of prior use.