Research On The Application Of Existing Technology Defense In The Judgment Of Patent Infringement Of Traditional Chinese Medicine

In recent years,with the rapid increase in the number of patents in China,patent infringement disputes are also increasing day by day.As a means of defense against infringement,the existing technology defense is more and more used in patent infringement disputes.However,the relevant legal provisions are too vague,and there are still many problems in the application rules of the existing technical defense in our judicial practice,and the application in the field of patent infringement of traditional Chinese medicine is more confused.This paper introduces the basic theory of the existing technology defense,clarifies the institutional background of the existing technology defense,and discusses the theoretical value of the existing technology defense combined with the situation of the imperfect authorization.This article combines patent infringement cases related to TCM technology and patent disputes related to pharmaceuticals,and combines the problems existing in the existing technology defense itself with the application problems in this field,mainly including the following four aspects:Firstly,on the application of evidence of existing technology.Patent technology involving third party interests should fall within the scope of existing technology defense;the publication of TCM standards needs to determine whether it constitutes publicity or not according to specific circumstances.Secondly,the application of the comparative standard of the existing technical defense.The theories of novelty,equivalence and creativity have their own advantages and disadvantages,while the representative foreign countries have developed into the "creativity" standard.The existing technical defense standards in patent infringement of traditional Chinese medicine are not uniform,but most attention is paid to the "creativity" standard.With the reform of China’s judicial mechanism and the improvement of the level of technical issues in court hearing,the "creative" standard can be used as a comparative standard for the existing technical defense in China.Thirdly,the application of the comparison way of the existing technology defense,including the problem of the combination mode of the existing technology,the overall comparison between the existing technology and the complaint technology,or the comparison of some technical characteristics.In the field of traditional Chinese medicine,the choice of these two methods needs to be clearer,because many accused infringers cite a number of existing technical documents,but in fact,the proof is not standardized or insufficient.Therefore,the combination of existing technology can be modified into an obvious combination of existing technology and common sense or with a simple existing technology.Of course,it is necessary to adhere to the overall comparison of all technical characteristics with an overall existing technology.Fourthly,the comparison order of the existing technical defenses.There is also confusion in the application of patent infringement priority judgment and existing technology defense priority judgment in relevant cases in the field of traditional Chinese medicine."Priority determination of existing technology plea" does not save judicial resources,and there are some cases of "adding more to the snake",while "priority determination of patent infringement" conforms to the order of proof in patent infringement cases,and also coincides with the nature of our existing technology plea,which can be a better choice.