The Research On Prior Art Defense

In recent years,the amount of patent applications filed in China has been increasing year by year.As the number of patents increases,the resulted patent infringement disputes have also been rising substantially.As a type of non-infringement counterplea,the prior art defense is applied by more and more defendants in the disputes of patent infringement.However,due to the obscure legal provisions in China,the applicable rules of the prior art defense in the judicial practice of China are still relatively confusing.From the theoretical perspective,there is also considerable controversy over the legal basis,characteristics,comparison sequence and standard of establishment of the prior art defense.Based on this,this dissertation starts with the basic theory of prior art defense,then studies the related cases in the judicial practice of China through a classification way,and concludes the problems and difficulties in the application of the prior art defense in the judicial practice of China.Secondly,the author studies the applicable rules of the prior art defense in Germany,Japan and the United States from the perspective of comparative law.Thirdly,the author ponders deeply over the improvement of the prior art defense in China and has provided his point of view,so as to result in benefits to the judicial practice of patent infringement cases in China.This dissertation is divided into four parts.The first part(the first chapter)mainly studies the basic theory of the prior art defense.This chapter begins with an introduction of the prior art defense and the prior art as used in the prior art defense,and then analyzes the institution background and the value of the prior art defense.After that,the author introduces the controversy over the legal basis of the prior art defense and proposes that the theory of "defective patent correction" and "authorization correction" should be the legal basis of the prior art defense.In the end,the author introduces and analyzes the disputes of the nature of the prior art defense and expounds his own point of view.The second part(the second chapter)focuses on the classification of the related cases in the judicial practice of China in recent years.First of all,the author uses China Judgements Online and PKU Law as the search database,and has classified the cases related to invention patent infringement,utility model infringement and application of the prior art defense by year and by trial court.After sorting and analyzing,the author selects 15 most representative cases therefrom,and summarizes the disputes in the judicial practice of the applicable rules of the prior art defense based on the 15 cases.In the end,the author concludes that the applicable rules of the prior art defense in the judicial practice of China are not consistent,such as the comparison sequence,the comparison manner and the standard of establishment.The third part(the third chapter)mainly discusses the judicial systems and the applicable rules of the prior art defense involving the patent cases in Germany,Japan and the United States from the perspective of comparative law,and compares the specific applicable rules in the three countries through tables,so as to cause some indications related to the improvement of the prior art defense in China.Based on the previous research,the fourth part(the fourth chapter)considers the improvement of the prior art defense in China and brings out the author's own opinions,including the following aspects: the prior art defense can be applied in equivalent infringement;the comparison sequence in which “the patent infringement judgment takes priority" is more advantageous for the practical operation;"inventive step standard" should be the most reasonable standard of the prior art defense,however,according to the current judicial system of the patent cases in China,the standard of "the same or no substantive differences" is the most suitable standard for the prior art defense in China,etc.