Patent Prior User Right Defense

According to the Patent Law of the People’s Republic of China, the following circumstance shall not be deemed as a patent right infringement: Before the date of application, any person has already produced identical products, used identical method or has made necessary preparation for the production or usage and continues to produce or use them within the original scope. This article is the so-called the patent prior user right defense. The only provide in the Chinese law about the patent prior user right system. Although it’s not the definitely right express in the law article, the term is already be recognized by the academic and theoretical circles. So in the following thesis reference, I will use the ‘patent prior user right’ instead of the provision of the second part of the article 69 of the patent law. The reason for setting up the patent prior user right is the system could strengthen the stable operation of the patent application system, balance the interests between the patentee and the prior user, guarantee the develop of the production and other economic activities. But there exists some not very obvious legislative provisions during the applying to the judicial practice, different courts hold different views and attitude, which result in the damage of interest of the both sides. The place which easily leading to ambiguity include the necessary preparations, the scope of the original and the subsequent implementation.This thesis comprehensively uses case analysis, literature research, value analysis and comparative methodology, the paper mainly study three aspects of the controversy, Through deeply analysis and discussion about the problems so that my proposal can offer little help for the patent prior user defense. The first part of the paper will introduce basic theory about patent prior use right, including the legal basis and the value of the system. Then the second part, I will analyze the dispute points one by one detailed. And at the last chapter, I will put forward legislative advice for the development of prior user right.The first part gave an outline of the patent prior user right, the reason why establish the right for patent infringement action, the necessity and the value of it’s exist, point out the related legislation and defects. Through the collection of the typical cases, the author summarizes the most controversial points are necessary preparation, original scope and subsequent implementation. In the following part, each dispute points will be interpreted specific and detailed.The second part begin with several typical cases, summarizes and classified the court’s opinion in the practice operation, sorts out the domestic scholars point of view, refer to the universality current legislation of prior user right defense in patent infringement, Based on the aforementioned content, I will point out my own conclusion about the dispute issues after analyze the legislative value basis and draw useful lessons from other foreign patent laws, in order to balanced the interests of prior user and patentee.The third part is the legislative suggestions about improving the prior user right application in patent infringement. According to previously two parts description, I suggest that material should be added to necessary preparation; original scope should be reasonable expansion; what’s more, use, sell, offer to sell and import all should be include in the subsequent implementation behavior.