Prior Art Defense And Legal Application

Prior art defense principle is widely used in many foreign countries,e.gJapan,German and American. The Patent Law has been implemented for30years inChina, but the Prior Art Defense appeared in2008.Similar to some countries of civillaw system, our country implements a split system, wherein courts and invaliditychallenge determine patent infringement is heard by the Patent Reexamination Board(PRB) of the State Intellectual Property Office (SIPO). So the judge has no power todefine weather the patent is valid or not. In order to reduce the problem, which causedby the different function of patent validity determination and the court in theinfringement analysis caused by PRB, Article62of the Patent Law establish the PriorArt Defense in patent infringement litigation.As we all know the Prior Art Defense is very young and the ruling provision issimple in China. Although there are provisions to deal with such cases in China’s lawsand judicial interpretations, the relevant provisions are too simple, and there are manyunreasonable provisions in it.This essay applies the study of Prior Art Defense system. The body part mainlyconsists of the following three chapters:Chapter one is an overview of the Prior Art Defense, including the meaning,resources, character and meaning.Chapter two attempted to make a comprehensive analysis to Prior Art Defenseby studying foreign legislations, such as German, American, Japan and so on. Hope tooffer reference to the relevant legislation and administration of justice of our country.The third chapter is one of an important part, which introduces which evidencecan be used in the litigation. Although the Patent Law establish the PriorArt Defense, The legislation is very simple so that far unable to meet needs of the trail. Based onthe statements of actual cases and analysis of related legal provisions, this chapteralso analyzes the suitability of Prior Art Defense in China from our law system, lawpractice and law view.