Patent Infringement In The Existing Technology Defense System

Existing technology defense refers to the patent right infringement dispute case, the accused infringement claim items involved in the case is the use of existing production technology manufacturing, does not infringe the patent technology, which does not constitute an infringement defense。The2008revision of the patent law of China third times specified in the existing technology defense system。Patent law the sixty-second regulation:"in a dispute over patent infringement, the accused infringer has evidence to prove that the technology or design belongs to the existing technology or design, does not constitute an infringement of patent rights。"Because of the provisions is not specific enough, in judicial practice, how to apply this principle to understand not one. In the prior art plea is applicable to equivalent infringement or the same applies to tort, the existing technical standards, the existing technology limits the accused infringer can be invoked, controversial aspects of existing technology comparison rules.The structure of this paper is divided into four parts:Objective, set the first part discusses the existing technology defense system legitimacy and properties. In this part, the first section lists the current objective setting on existing technology defense, that each point with the reality of judicial cases. Then the second section describes the origin and development of existing technology defense first. The third section analyzes the real purpose of existing technology defense system, this paper discusses the basis for. Limitations and then to several viewpoints on the first section lists. The fourth section discusses the properties of existing technology defense, to support of existing technology defense system from aspects of the role of nature.The second part discusses the scope of application of existing technology defense. The first section discusses suitable equivalent infringement is also applied to the same infringement. The second section discusses applicability from the proceedings, the defendant argued that is applicable when the system or the defendant did not claim the judge can according to the authority for.The third part discusses can invoke the scope of existing technology defense technology. Whether the first section discusses existing techniques must be quoted has entered the public domain, for the existing technology has not entered the public domain must be ruled out is it right?. The second section discusses whether quoted as evidence for the defense. How to identify the existing technology of the third section discusses practice.The fourth part discusses the specific application of existing technology defense. The first section discusses three kinds of technology comparison rules, namely the patent technology, control technology, citing how technology comparison in practice. The second section discusses the existing technology defense established standards.