Research On The Existing Technology Defense In Patent Infringement Litigation

As a unique defense principle in patent infringement litigation,the existing technology defense has been widely accepted and recognized by the international community.Existing technology defense refers to,both parties involved in the process of patent infringement litigation,the defendant is not necessary directly through the administrative procedures to apply for invalidation of the patent right,but also can be directly in the process of litigation,provides evidence proving that their implementation of the technology for the existing technology is known to the public as a defense.The origin of human rights against the patent patent infringement lawsuit.The patent system in our country has a history of thirty years,after thirty years of development,China's "patent law" of the three revision,from these amendments can show that the patent system of our country is gradually maturing,close to international standards.After the revision of the new patent law in 2008,the principle of existing technology defense has been formally established in china.In our country only implement the preliminary examination of the involved utility model and design patents only mode,if did not find any reason to reject it agreed to give the patent right,more important is due to a variety of modern information retrieval modes,inevitably will lead to some do not have the patent right for the patent right is granted.Thus,produce large numbers of patent defects.There will be these defects of the patent right to the patent infringement dispute some of the inevitable,the existing technology defense as an infringer relief while in foreign countries has been in existence for many years,but at present in China,is still in the exploratory stage.In judicial practice,apply the existing technology defense still has many problems,the provisions of existing technology defense is principle,leading to the legal staff and the parties more difficult in the use of existing technology defense,this is to be the law of our country to make specific provisions.This article in the introduction and part of existing technology defense in patent infringement litigation in the background and focus on the shade "case made a brief introduction,and make a preliminary analysis of the case,the focus of controversy of the case,leads to the full text.In the main part of the article,firstly,introduces the basic concepts of the theory of existing technology defense,elaborates the meaning,function and significance of existing technology defense,and make a comparison of existing technology defense and other related principles of confusion.Secondly,through the domestic and foreign theory of the existing technology defense in the scope of the application of the theory to sort out,indicating that we should adhere to the full application of existing technology defense and its thinking.Thirdly,it focuses on the applicable conditions of the existing technology defense and the order and method of comparison in the process of specific judgment.Finally,the paper reviews the case,analyzes the result of the judgment,and puts forward some suggestions on how to choose the tactics of the parties in the patent infringement litigation.