The Empirical Research Of The Application Of The Prior Art Defense In Judicial Practice

As a means of non-infringement defense for the defendant in a patentinfringement litigation, the prior art defense has been widely applied in judicialpractice. For the first time, the2008"Patent Law "defines the prior art defense as aprinciple provision, providing a legal basis for the application of the prior art defensein a patent infringement dispute. However, there is no detailed and specific provisions,or no agreement on the application of the prior art defense in judicial practice, such as:whether the prior art defense can be applied in literal infringement cases; which twoshould be compared first in a patent infringement litigation, the prior art and theallegedly infringing technology, or the allegedly infringing technology and thepatented technology; how to determine the prior art defense is succeed or not. Thiswill not only lead to operating problems of applying the prior art defense in judicialpractice, and all over the court trial results difficult to reach agreement, which willlead to the court in an awkward situation involving the same patent cases reaching acompletely different result of the trial. Therefore, it is necessary to integrate of theexisting theoretical essence as the bases, and use the legal statistics and analysismethodology of empirical research on the cases of applying prior art defense in ourcountry, in order to find good ways to improve the prior art defense applicable rules.The prior art for prior art defense include public technology, patented technologyand the technology of temporary protection. When it comes to the definition,conflicting applications are not within the scope of prior art, but, as the patent lawprohibits the repeat authorization, judges can refer to the applicable rules of the priorart defense to explore the applicability of the conflicting applications as the groundsof non-infringement defense in judicial practice.At the beginning, the introduction of the prior art defense is used to limit theapplication of the doctrine of equivalents, but with the social environment, legalenvironment and technical environment changes, the application of prior art defensein the literal infringement cases has consistent with the application of prior art defensein the equivalent infringement cases in the legal value, the prior art defense can alsobe used for the literal infringement cases.The patent right and the claims of the patent is the center of Patent law, thus inpatent infringement litigation, the judges should first compare the allegedly infringingtechnology with the patented technology to determine whether the accused infringement of the defendant is succeed, if not, then examination of the applicabilityof the prior art defense.The judicial interpretation of the provisions of the prior art defense comparisonstandard uniform for the same or no substantive differences, but the invention andutility model patent infringement cases can refer to the same or equivalent criteria; thedesign patent infringement cases can refer to the same or similar criteria.It is crucial to define the applicable rules of the prior art defense, so we shouldkeep researching and exploring in the theory and judicial practice.