Study on the specific application of law in this paper that focus on the provisionsof the prior art defense in the current Patent Law, is divided into two parts. The majorpart the author focuses on research is how, if it is possible, to apply the principle ofprior art defense law to solve the problem of traditional controversy and practice ofthe new types of cases, from the perspective of the theory of application law(including the theory of legal interpretation and legal loophole filling theory); Theauxiliary part, aims at to provide legislative suggestions on future reform anddevelopment of prior art defense system from the legislative perspective, based on thedevelopment trend of domestic and foreign theory, reference cases and the possibleeffects of the establishment of Intellectual Property Court in future in our country.The structure of this paper can be divided into the following four chapters:In the first chapter: Putting Forward Questions, namely analyzes theories andcase related to the development of prior art defense at home and abroad, refined andoptimized some present theory circle and practice circle focus on basic theory andapplication of prior art defense differences larger and specific legal issues.In the second chapter: Point Arguments, namely takes arguments and splitcombination, focusing on and demonstrate the theory tendency in the related issues,especially put forward based on previous research, revision or innovative argumentFirst, with regard to the nature of prior art defense, according to the type and scope ofpatent protection can be subdivided into two categories, namely in the sameinfringement, prior art defense belongs to the "tort exception", and in the sameinfringement, prior art defense belong to "non infringement"; secondly, on the orderof questions about the prior art defense, priority should be given to the allegedlyinfringing technology and patent technology are compared, and then processed according to the nature of the defense after the subdivision, in that the sameinfringement was not the case, the court considered equivalent infringement difficult,choose identify priority of equivalent infringement or priority of prior art defensethirdly, a comparison standard; and the combination of the defense case, can be usedwithout the standard of creativity, but if you want to turn it to universal norms, theyshould use no obvious creative standards, at the same time, make clear its typeincludes the same or equivalent technical characteristics of infringing technology withan existing technical scheme in the case, including the field of common technical staffthat the accused infringing technology scheme is a An prior art and belongs to thesame technical feature domain prior knowledge or another in the prior art, the simplecombination of circumstances. Fourth, conflicting application problems about defense,first need to be clear contradiction applies analogy apply prior art defense, and noother special restrictions, the concrete application the alleged infringer as long asproof of their proof technology to meet the conflicting application time elements canbe analogy apply prior art defense comparison.In the third chapter: Comments On Cases, preferably related to the topic of twotypical cases of new types of empirical analysis, it relates to the application of priorart defense technology application of analogy problem; the second relates to inventionand patent of appearance design of cross references cited prior art defense problems.Extraction and analysis of the issues reflected the new types of cases in the specificapplication of the law, on the one hand can be used to check and correct the old theorypoint of view, on the other hand, can also be used as the content of this article studieson the innovation of.In the final chapter: Conclusions and Suggestions, namely through the analysis inthe above an argument basis, starting from the legislative purpose of prior art defenseand related theory and the judicial practice development trend, stage, hierarchicalconcrete legislative suggestions (including judicial interpretation), to the reasonablestrengthening civil procedure to solve in the process of priority and decisive positionin the dispute. The first level related suggestions of legislation or judicialinterpretation will be put forward in the maintenance of existing licensing rights and infringement dispute settlement procedures based on the discrete system,; The secondlevel suggestions will be provided under the establishment of Intellectual PropertyCourt in our country, which may adopt a patent infringement dispute settlement underthe legislation mode and program integration legislation or judicial. |