Prior User Right Defense In Patent Infringement Litigation

Prior user right defense is a kind of defense that before patent application time,prior user has been making the same products, using the same method or has alreadyprepared for necessary to manufacture, use, and only continue to manufacture, usewithin the original scope,that shall not be regarded as for patent infringement. Theestablishment of patent prior user right plays an important role for patent applicationsystem, not only can realize the interests balance between the patentee, prior use andpublic, but also can guarantee the stability of the investment, production and operation,and other economic activities. In Chinese judicial practice there are many casesinvolved the prior user right defense, but different courts hold different points of viewand attitude about the condition of the establishment and applicable restrictions. Andthe main reason is that the current legislative provisions related to technical scope,technical source, necessary preparations, and the scope of the original is ambiguous.This paper comprehensively uses empirical analysis, literature methodology,value analysis，comparative research, aims at in-depth analysis, interpretation anddiscussion about problems of the prior user right defense system. In this paper,starting from domestic judicial practices, some typical cases are analyzed andclassified, in order to summarize the attitudes of the courts on how to apply the prioruser right defense in the litigation, and then I will point out the issues existing inlegislative, judicial practice and the theoretical study, analyze the grounds and drawlessons from foreign patent law, try to put forward legislative proposal for the development of prior user right defense. This paper is divided into three chapters ofthe specific studies:The first chapter empirically analyzes typical cases of prior user right defense.This paper sorts out the representative of the typical cases, summarizes theuniversality of prior user right defense in patent infringement, and sums up the courts’attitude at standards and applicable limits of prior user right defense, on the basis ofthis points out that the essence of the problem is that the current legislation is notclear.The second chapter, from the angle of theory of the basic nature of prior userright defense, legal basis, the relationship with the patent law relevant provision,analyzes the condition and applicable restrictions on contentious issues. In thischapter, the author summarizes and induces theory about the prior user right defenseestablished standards and applicable limit point of view, and mainly include the firstsources and necessary technical scope, technical preparation, original scope, and putforward the defects of legislation. Bases on legal basis of prior user right defense, andconsidering the current patent protection system in our country, the author analyzesthe prior user right defense in judicial practice and how to apply concepts and ideas,in order to achieve the balance of public interests and personal interests.The third chapter is about the legislative suggestions of improving the prior userright defense system. Under the comprehensive analysis in the existing legislationframework about prior user defense, on the basis of combining with the previous twochapters to issues related to prior user defense, we draw lessons from foreignlegislation on prior user rights defense, the paper raises the corresponding solutions toexplicit the established standard of the system and the applicable restrictions，and putforward strategies and suggestions on the action of enterprises and individuals forprior user right defense.