The Application Of Existing Technology Defense In The Patent Infringement Cases

Existing Technology Defense, which is the unique tort defense rules of Patent law，iswidely accepted by many countries’ judiciary and applied to the patent infringement dispute.With the development over a long period of time, Existing Technology Defense is fairlyconsummation in Germany and Japan. Our country introduced the institution of the ExistingTechnology Defense in the judicial practice in the first place. There is no legal basis for usingthis principle in the judicial practice for two decades. Existing Technology Defense wasintroduced into "Patent Law" in December27,2008after a formal amendment. Thisamendment of the "Patent Law" provides a clear legal guidelines for the application ofExisting Technology Defense. However, the law is still not specific enough, there is no unitedregulation for using this principle and determine it in the judicial practice. There are manyargues for these questions in both of terms of theory and judicial practice, and result indifficult in applied Existing Technology Defense.Many years ago, the theorists of our country have started the research on ExistingTechnology Defense, and many well-known legalist and scholars clearly set forth theirtheories about this principle. There are also suitable cases that applied the principle ofExisting Technology Defense in the judicial practice. Related the new "Patent law" with therelated legal rule and the judicial interpretation and even the classic documentations, todiscusses the questions and argues of Existing Technology Defense. Which is very useful tothe development and consummation of the institution of Existing Technology Defense, andbenefit the application of this institution in the judicial practice.The case "Xin Haiyi Corporation sue to Pu Tian Corporation for the utility model patentinfringement" is a successful case in the application of Existing Technology Defense. Thepurpose of this article is to bring a further discussion of the questions and argues of ExistingTechnology Defense. And to put emphasis on the application scope, applicable rules, and thecriterion of Existing Technology Defense in the practice point of view based on the referenceof the case above in order to benefit legal practice.This article mainly through the following four chapters to discuss the legal application ofExisting Technology Defense. The first chapter mainly introduces the "Xin Haiyi Corporation sue to Pu Tian Corporation for the utility model patent infringement" case, the judgment ofthe court and argues in this case. And lead up to the theme of the legal application of ExistingTechnology Defense. The second chapter discusses the basic theory of Existing TechnologyDefense, which includes the connotation, the legal origins, the character and the significanceof Existing Technology Defense. The third chapter of the article expounds the applicationsituation of this principle in China and the problems and argues in it. Then put forward somepersonal suggestions on the scope of the existing patented technology for defense, theapplication limits of Existing Technology Defense, and the comparison method and criterionof this principle. The final chapter discusses the problems related to the case in the firstchapter, which is about the defendant whether or not be allowed to cite several existingtechnologies for defense, and how the defendant to choose between Existing TechnologyDefense and the Patent Invalidation Proceeding. Besides put forward some suggestions inorder to be helpful to the application of Existing Technology Defense in judicial practice.