Research On The Legal Problems Of Prior Art Defense

With the third amendment to the Patent Law in 2008,the rule named prior art defense,was introduced into China officially,which provided the alleged infringer with legal basis for his claim that the technology he used is prior art so he does not need to undertake the liability for infringement.However,there is only preliminary provision of prior art defense,some specific problems surrounding it,such as the scope and content of prior art,the range of application and comparison rules are not in place.Non-free known technology meets all the requirements of prior art,so it can be the basis of prior art defense.In addition,the prior art should be restricted to an existing and independent technology in prior art defense.Not only equivalent infringement but also literal infringement can be put into the application of prior art defense.It's possible for people to gain the technology recorded in overt conflicting application and put it into practice,so the technology recorded in overt conflicting application can be a defense as prior art in patent infringement litigation by analogy.The prior art defense is an exception of infringement in essence,its application is on the base of infringement had occurred.Therefore,about the order of comparison,the technology used by defendant should be contrasted with the patent technology first,if the infringement was established,then compare it with the prior art.Since the court adopts "same or equivalent" as the criterion of infringement determination,which expands the scope of patent right appropriately.The standard of "same or equivalent"can expand the scope of prior art defense in equal measure.In order to make the patentee's right and the right of using the prior art for people come to a balance,it is more appropriate to choose "same or equivalent" as the standard of whether the prior art defense was set up or not.