Research On Prior Art Defense In Patent Infrigement Litigation

In recent years,the intellectual property industry has become increasingly luxuriant,and more and more disputes have been caused by patent infringement.As a means of defense,the defense of the prior art is very important in the litigation.However,the provisions of the Chinese law on the defense of the prior art are not detailed.The theoretical circles are controversial about related issues,and their use in judicial practice is also confusing.,affecting judicial authority and unification.This paper mainly focuses on the scope of application and the applicable rules of the defense of the prior art.Through the combing of the literature,the author refines,summarizes and analyzes the controversial issues in these two aspects,and discusses and studies with the cases in practice..Then I will study the existing technical defenses of Germany and the United States,compare China with Germany and the United States,and help China improve the application of existing technical defenses by comparing and combining the status quo of China.The provisions on defense of existing technology in China's patent law are only mentioned in Articles 22 and 62,but the content of these two articles cannot elaborate on the usage of prior art defenses.The current general practice in patent infringement litigation is to first determine whether the alleged infringing technology infringes the patent right of the plaintiff's patent,and then judge whether the conditions for applying the prior art defense are met if the infringement is established.Of course,there are also views that the first thing to do is to judge whether the existing technical defense can be applied instead of determining whether there is infringement.According to the characterization of the defense of the prior art,it can be determined as an infringement exception defense,and it can be easily determined that the infringement is established before the application of the prior art defense.In the process of applying the prior art defense,the problem of setting standards is the most important.China's relevant judicial interpretations believe that the establishment criteria are “the same or no substantive differences”,but there is no specific explanation for the criteria of “no substantive differences”.At present,it is theoretically considered that the establishment of standards has “novelty”.Standards,"creative standards","equivalent standards".In practice,when judges judge the establishment of existing technical defenses,many of them avoid the problem of setting standards.They simply judge whether the existing technical defenses are established or not.This leads to the use of different standards by the court in the trial of the case,and judging whether the defense is established is also a higher-level task,and the judges' business requirements are higher,which also leads to the application of the prior art defense.Difficulties.As far as China's current more applicable standards are “equivalent standards”,other countries with more developed patent systems adopt “creative standards”.The "creative standards" require the judges to have the corresponding technical level,and China can now reach such standards.The application of the prior art defense is very important for China to correct the patent,so it is urgent to make specific provisions to regulate.