A Research On Prior Art Defense

With the enhancement of citizen’s rights consciousness, the number of patent applicationsincreases gradually in recent years. However, the increase in the number doesn’t greatly improvethe quality of patents, among which there are lots of imperfect patents. Most of these imperfectpatents are similar to the prior art in some sense, worse still, are the transfigurations of the prior art.If the abuse of such patent rights is allowed, it will become an obstacle for the public to share theoutcome of social development and it will also squeeze the living space of other patent rights.The prior art defense system in China is a new research, formally written in patent law in2008. But in China’s judicial practice, it has already appeared to some extent. The prior art defensebegan in Germany; adhering to the logical and the characteristics of civil law, in Germany it has acomplete theoretical system and judicial practice. Chinese similar provisions of the prior artdefenses should be traced back to the1984Patent Law (2008Revision) and the Supreme People’sCourt released on February16,1985on patent trial "(Act (as amended)[1985]3, has expired).With the continuous improvement of prior art defense theory, prior art defense appeared more andmore frequently in a variety of cases and judicial interpretations. The first time to stipulate theprovision of prior art defense is the newly revised Patent Law (2008), which has become themilestone in the development of patent system. However, as the regulations are too abstract, itsapplication in practice has been the hard nut to crack for the community of practice.This paper will comprehensively describe the prior art defense system by means of itstheoretical research and trial practice. The paper is divided into four parts. The first is the conceptof the prior art defense. It introduces the concept of the prior art and the prior art defenserespectively, and explains the legal effect of the successful prior art defense and the differencebetween the prior art defense and invalidation. The second part introduces the theoretical basis andpractical basis of the prior art defense. From the viewpoint of the legislative intent of the patentlaw, especially the innovative aspects, it describes the feasibility of the prior art defense.Combining the inevitable errors of patent examination, patent invalidation review system with the principle of separation in infringement action, it further clarifies the necessity of prior art defense.The third part deals with the course of development of the prior art defense, including overseasexperience and our own course of development. Finally, it introduces the applicable rules of theprior art defense.