On The Defense Of The First Use Right In Patent Infringement Litigation

Our country patent awarded patents adopt the first-to-file principle, but the principle has itself defects. It will make a great unfair for who have made or used these product or measures before the day of applying or priority date. It obviously violates the principle of interests balance. Therefore our country learnt prior use right from foreign country to make up for deficiencies. The supreme people's court on the application for patent infringement dispute cases to explain some issues of law had made in 2009,but because we have been inclined to protect patent so that we still cannot make well protection for prior user. Thus I want to open the subject for discussion by this article, to make the prior use right system don't be looked more like a light dusting, make full used of it to protect fair, make reasonable use in producing, promote the progress of science and technology and the development of the society.This article illustrated the mean of prior use system and combined previous researches by value analysis, comparative research, case analysis and so on to find out why prior use system has been made so long but only a little of cases win by adopting the measure of defense of prior use right.In addition to its introduction and conclusion, this paper has four main parts, which are as follows:The first chapter simply declares the mean of prior, the same points and differences between defense of prior use right and others. The second chapter is on the basis of researching on the prior use right system of Germany, France, Japan and Britain to find out the same points and differences between these countries, the reason of these differences and the aspects which we can learn from.The third chapter is discuss about the main problem of defense of prior use right in our country, such as these undefined of whether the prior behaviour keeping secret or not, the sequence between defense of prior use right and other defense measures, the burden of persuasion in the defense of prior use right, the forms of behavior of continuing to make and use right are too narrow,the scope of the judgment standard of'original scope' is too strict. The fourth chapter is researching on the improvement of our defenses of prior use right. We must make clear definition of prior behavior that it must be secret. Researching on the relationship between the defense of prior use right and others, the burden of persuasion. There is differentness of the forms of behavior between before or after the date of application. We should take the purpose of business criterion to judge defense of prior use right.The innovation of this article is that it pays more attention to the application process of defense of prior use right with so many scholars paying attention to the theory of prior use right. And it pays more attention to practical problems. It researches on whether opening of the behavior of prior use, how to deal with so many defenses and make clear of the burden of proof between the plaintiff and the defendant.