A Research Of The Prior Art Defense System In The Patent Litigation

With the implementation of the intellectual property strategy in China,the public awareness of intellectual property rights protection has been greatly increasing,the followed number of patent infringement dispute has been increasing consequently.The prior art defense was stipulated in Article 62 of the Chinese Patent Law in the third amendment in 2008,which aims to reduce the burden of the patent litigation and solves patent dispute efficiently.In a patent infringement dispute,if the defandant provides evidence to prove that the technology or design exploited is an existing technology or design,the exploitation shall not constitute a patent right infringement.It makes it possible for the defendant to get rid of the patent litigation by providing evidence what be able to prove that the accused technology or design is the prior art,and the patent invalidated disputes is not necessary involving in.The prior art defense provides a potent tool for the defendant to defend the plaintiff’s wrongful infringement charge,which is beneficial for increasing efficiency of the patent litigation that the prior art involved in.However,some rules of application of the prior art defenses are ambiguous,and the prior art defense as a new dispute resolution mechanism conflicts with the current patent system.Competent collisions between administrative and judicial system are invoked in the literal infringement litigation where the defendant is allowed to claim the prior art defense,the stability of patent system is seriously threating.Whether the relationship between the accused technology and the prior art should be examined first is unclear due to the ambiguity of the definition of the defense.The deviation of the standard of infringement leads unjustified differences of the patent protection.Standards of judgments about the prior art defenses are inconsistent as the result of existing problems mentioned above,which failed to respond the legislative intention that perform an efficient dispute solution mechanism in the patent litigation.Therefore,it is necessary to analyze existing problems and clarify specific rules of application of the prior art defense in China.Based on the basic theory of the prior art defense,this thesis starts from studying the meaning and function of the prior art defense,and definites the scope of the prior art.Then analysis existing problems of the prior art defense in practice,focusing on disputes in the scope of application,the sequence of application and standards that prove the accused technology belongs to the prior art.In the context of the reformation of judicial protection of intellectual property rights in China,absorbing advanced practical experiences about the prior art defense in the German,American and Japan,this thesis provides suggestions that strip the literal infringement from the scope of application and drainage it to the invalidation defense or the prohibition of misuse of right principle where would not incur judicial and administrative competent conflict,take the method that takes the prior art proof comparison precedence over others,and introduce the patent claim into comparison as a reference to clarify specific technical elements at the same time,take equivalent standard to judge what kind of accused technology belongs to the prior art.Hope it is useful for the improvement and development of the prior art defense in China.