Research On Application Of Patent Technology Prior User’s Defense

The prior user’s defense is provided as in China’s Patent Law Article 69(2).The rule doesn’t provide the prior user an independent right, but only a defense when they are in the patent infringement lawsuit. The prior user’s defense makes up for the deficiency of the prior patent application system, and maintain the prior users’ interests, it also balances the interests of the patentee and the prior users to a certain extent. The conditions of the prior user’s defense can be summarized as behavior elements, the source of technology elements and restrictive elements. The behavior elements require the prior users have made the same products, used the same methods or have been ready for making or using before the patent application date. Behavior elements should clarify some factors:the prior users’ behavior should continue to the patent application date; the behavior of prior use just concludes secret ones; The meaning of the same products or methods should be expanded; necessary preparations should include both technical preparation and production preparation. The patent law in our country has not banned that the prior users’ technology source can be from the patentee. As a result, the patent technology of the prior users can be from the patentee or the patentee’s non-prejudicial disclosures. Meanwhile, the scope of patent technology that can be allowed to use by prior users should be limited, or it will damage the interests of the patentee. Firstly, the prior users can continue manufacturing and using only within the original scope.So the original scope should be defined reasonably, rather than just from the yield; secondly, the prior users can transfer the patent technology only when the technology, or the design is transferred or inherited with the original enterprise.