Study On The Defensing Nature Of Interference Application

:There was a patent infringement dispute between Qiu and a company of Changsha Based on the invention patent "A kind of cast-in-place reinforced concrete hollow slab",in which the company claimed thaf"interference application"can be suitable for the existing technology defense. Court of First Instance considered that the"interference application"cannot be applied to the existing technology defense. Court of Second Instance reviewed the defendant’s claim,and confirmed the view of "interference application can be suitable for the existing technology defense" in fact.The focus of dispute of this case is that,In the patent infringement lawsuit,whether the defendant take the "interference application"as existing technology to do infringement defense,that is to say "wether the’interference application’ should be be applied to the existing technology defense".Existing technology refers to the technology which is known to the public all over the world prior to the application date (or the priority date),and the legal basis of it is the legislative purpose of patent law that balancing the public interest and the interests of the patentee,and it has two basic functions:the one is to evaluate the novelty of patent or patent application,the other one is to evaluate the inventiveness of patent or patent application.Interference application is a kind of application or patent which the application date prior to another application’s or patent’s application date,while the publication date posterior to another application’s or patent’s application date.The legal basis of it is also the legislative purpose of patent law that balancing the public interest and the interests of the patentee,and it’s basic function is only to evaluate the novelty of patent or patent application.Existing technology defense is a kind of infringement defense which the allowed the alleged infringer to raise a defense based on the fact that the patent in action is publicly known prior to the application date of the patent in the patent infringement lawsuit,and it’s legal basis is the legislative purpose of patent law that balancing the public interest and the interests of the patentee.Since it solves the court’s helplessness about the "defective patent" which dose not meet the novelty condition or the creativity condition when it handles the dispute on patent infringement under the principle of separation of powers, and it is not only the flexible use of the principle of separation of powers, but also meet with the legislative purpose of patent law that balancing the public interest and the interests of the patentee,so the existing technology defense system was finally established as a legal system after it’s long-term development on cases and theory.There are two views about "wether the’interference application’should be be applied to the existing technology defense":one is "negation theory",which says that "interference application"cannot be applied to the existing technology defense by the defendant in the patent infringement lawsuit;the another is "definition theory",which says that "interference application"cannot be applied to the existing technology defense by the defendant in the patent infringement lawsuit.Although the outcome of this case has supported the "definition theory",but it’s legal basis and legitimacy,and defensing standard of interference application are all need to improved.