The Predicament And Solution Of The Prior Art Defense

The third revision of the Patent Law in 2008 defined the Prior Art Defense for the first time. According to the regulations, as long as the accused infringer has conclusive evidence establishing that the techniques or designs he used belong to prior art,there is no need to assume the tort liability,even if the technology or design does fall within the scope of protection of the plaintiff’s patent.But in order to avoid the problems of patent validity,and for worry about the grass-roots Court’s ability in technical examination, the Supreme Court issued judicial interpretations to limit the application of the prior art defense,but had to extend the applicable scope in judicial practice. the shortcoming of legislative language, and the vague and even contradictory position and attitude of the Supreme Court, led to the use of the system in the judicial practice is not satisfactory. The Prior art defense system faces difficulties in its application.The underway changes in the judicial system of intellectual property provide a rare opportunity.Only seizing this opportunity, taking advantage to remove restrictions on the prior art defense, and even the introducing the patent invalid defense system, can help to resolve the predicaments being faced.