The Application Of Prior Art Defense In Patent In Infringement Litigation

Since China promulgated the Patents Law, along with the continuous improvement of the patent system, people’s legal awareness and rights awareness also constantly improved and the appeal of patent infringement cases increased sharply. But the patentee’s patent cannot be all granted accurately for various reasons, some patent authorized do not have features of novelty and creativity. When this patentee filed a patent infringement lawsuit, the court shall refuse to accept the infringement to give relief. In accordance with the terms of the patent system in separation mode, the admissibility of infringement court has no power to confirm the validity of the patent, for review only by the patent administration department. If the request must declare the patent invalid, drawbacks have emerged-wasting a lot of time and effort of the parties. The prior art defense system is able to solve the above problems. The Patent Law before2008in China did not pair well-known technique of defense legislation, but in many judicial practice, many courts used defense of prior art in patent infringement cases and successfully trialed a number of patent infringement disputes. The prior art defense will be written into the newly revised patent law for the first time, which will end embarrassment for there are no prior art defense system in accordance with the law in our country.Due to the provisions of the revised Patent Law of prior art defense is not clear, the prior art defense in patent infringement case in the specific applicable rules did not make detailed provisions. When the Court faced a defense of the use of prior art, it often find it difficult to fit in determining the results tend to vary in the same case. On the basis of case studies on the use of comparative and empirical research methods, basic theories of well-known defense technology, issues of disagreement exist in practice to analyze argumentation. This paper is divided into three parts:The first chapter, through the patent case-Heat-sensitive controller for water-boiling vessel in defense of both views, and introduced the first instance court of second instance court’s decision, leads to the known art defense applies in judicial practice in a variety of problems in order to find a clear solution. The second chapter, the basic theory of the defense to make known techniques elaborated, clarified the concept of defense known technology and nature, but from the basic principles of patent law, the principle of fairness, balance the interests of the theoretical perspective of the legal basis of the three well-known defense technology Finally, a detailed description of prior art to defend the necessity of the introduction of reality, it is possible to save litigation costs, prevent malicious litigation. The third chapter, as a central part of this paper, specifying the prior art defense in patent infringement disputes judges may encounter problems, this article will be attributed to three aspects, first define the prior, the results for non-free prior art can introduce defense, inconsistent application does not belong to the prior art; Secondly, the scope of the prior art defense of comparative analysis, Japan, Germany, the doctrine as a reference for China’s prior art defense whether in the same infringement applies to conclude. At last, in contrast to the prior art defense mode, sequence comparison, comparing methods and other issues were discussed, the paper tried to establish a reasonable system. In the final chapter, the paper put forward some own proposals to the loopholes of the prior art defense regulations in China’s Patent Law.