Research On Prior Art Defense

The prior art defense in China is still at its start-up stage. Although2008Patent Law has officially introduced the prior art defense, there is only one simple clause that governs the subject matter and a lot of specific rules surrounding it are not in place. Many aspects of prior art defense can still spawn heated discussion in the academic and judicial circle. The dissertation is aimed at drawing a clearer picture of prior art defense and offering some advice on the perfection of the prior art defense in China by discussing and enunciating relevant controversial issues.The dissertation is divided into four chapters.The First Chapter will introduce some important basic theories of the prior art defense. Firstly, in this chapter, the concept, origin and practice in several important countries will be presented, during which the author will make a different definition of prior art defense from the main stream theory. Secondly, the discussion will be focused on the essence of prior art defense. In the author’s opinion, the prior art defense is essentially a plead of patent invalidation. The essence constitutes the building block of all the discussions around the prior art defense. Thirdly, values embodied in the prior art defense will be involved; And then, a brief introduction of the scope of prior art and the accused art is to be made. In the end of this chapter, comparisons between prior art defense and patent invalidation proceedings, and between prior art defense and the doctrine of equivalent will be made.The Second Chapter will probe the range of application of prior art defense. There still exist many controversies as to whether prior art defense is allowed in literal infringement. The author is to offer some opinion upon analyzing the controversies mentioned above.The Third Chapter will enter into discussion about rules of application of prior art defense. The issues discussed under this chapter involves the subjects of comparison, the sequence of comparison and the standard by which a prior art defense stands. The discussion over subjects of comparison mainly involves the issue that whether the comparison between the plaintiff’s patent and prior art should be allowed. The discussion of the sequence of comparison involves the issue that whether to first compare the accused art and prior art or to first compare the plaintiff’s patent and the accused art. The discussion over the standard by which a prior art defense stands mainly involves the introduction and analysis of various opinion on the standard, upon which he author concludes that the doctrine of literal or the doctrine of equivalent shall prevail.The Fourth Chapter is to offer advice on the perfection of the prior art defense in China predicated on the discussion above, including the perfection of the range and rules of application of the prior art defense.