The Conflicting Application Defense In Patent Infringement Litigation

The legal status of the prior art defense was established in 2008 in China,but there is no stipulation on the conflicting application defense.In judicial practice,in response to requests for the conflicting application defense made by the accused infringer,the courts usually deal with them by analogy with the prior art defense rules.However,the reasonableness of the conflicting application defense system is still controversial,and the applicable rules of the conflicting application defense have not been unified yet.The existence of these two issues restricts the development of the conflicting application defense system.Establishing the legal status of the conflicting application defense system and designing specific rules of the conflicting application defense will help balance the interests between the public and the patentee,and further achieve the fundamental purpose of the patent system.The conflicting application defense system has the necessity and the validity.It can reduce the negative influence of patent wrong authorization,make up for the prior art defense and improve the efficiency of patent infringement litigation.The justification of the conflicting application defense system is that patents without novelty should not be protected.In addition,through reasonable design,the application process of the conflicting application defense will not violate the principle of separation of powers.The following rules should be followed when applying the conflicting application defense:First,the scope of the conflicting application defense is not restricted by the same infringement and the equal infringement.Second,the conflicting application involved in the conflicting application defense only need meet the formal requirements.Third,when applying the conflicting application defense,the conflicting application should not be compared with the patent involved in the case.Fourth,the invention of patents and utility model patents should be determined using public standards,while design patents should adopt the same or similar standards for identification.