Research On The System Of Patent Preemption In China

The prior right to use the patent is a special right granted to the prior user by the law,that is,the patent technology that has been implemented or is being implemented before the date of patent application.After the grant of the patent right,the original user is still permitted to use in the original range.The patent first right system makes up for the shortage of the patent first application system,properly handles the relationship between the prior user and the patent owner,avoids the abuse of the patent right to a certain extent,and promotes the transformation of the patent technology into productivity.The sixty-ninth articles and first paragraphs of the People's Republic of China patent law confirm the legal status of the right to use the patent.Subsequently,the judicial organs of our country have made more detailed provisions on the application of the right of first use in the judicial interpretation.However,there still exist many problems and drawbacks in the application of patent right in our country.Sometimes,it leads to the unclear rights and interests of the patented person and the right holder,which leads to some contradictions and disputes.This paper on China's first with the theoretical basis of patent right system detailedly,next to our prior use of patent rights applicable status of the system and problems are described and demonstrated,again through the analysis of foreign patent first with the experience and practice of the right to put forward their views to solve the last of China's first patent right to use the existing problems,in order to provide useful reference to China's patent right system with perfect.The first chapter is an overview of the patent rights system.This chapter discusses the concept of patent preemption right and the difference between it as a defense right and other related rights.Chapter two summarizes the present situation and existing problems of patent preemption system in China,such as quantifying the "original scope","implementing act" does not include promise sale,sale,"technical source" identification is unclear,"necessary preparation" adopt a single technical element.The third chapter introduces the extraterritorial provisions of patent preemption.Summarize and comment on the advance right system of Japan,Germany,United States and Taiwan.The fourth chapter puts forward the perfect suggestion to our country patent advance right system,namely does not limit "original scope" with the quantitative standard,clear sale,promise sale is carry out behavior,the technology gains can come from third person,does not allow the patent advance right transfer,"necessary preparation" needs the technology and the material double preparation.