Research On The Restriction System Of The Patent Prior User Right

With the new round of global technological revolution and industrial transformation accelerating evolution,the object scope of the patent right is expanding,the field of patent protection is continuously extended,the time limit and region limit of patent protection are constantly broken through.In recent years,Some scholars began to advocate appropriate the restriction of patent right,the value pursuit of the restriction of the patent right is not to hinder the development of the innovation,but the legal definition of the patent right is essentially the limitation of the right in order to realize the right.As the restriction of patent right,prior user right not only makes up for the deficiency of first-to-file system,but also avoids the abuse of patent right to some extent.The patent prior user right restriction system mainly includes two aspects: the restriction of patent prior user right to patent right and the restriction of prior user right itself.The article 69,paragraph 1,item 2 of the current patent law of China also clearly stipulates the system of patent prior user right restriction,which confirms and allocates the interests of the patentee and the prior user from the legislative level,but because this provision is too vague and abstract,there is a great deal of flexibility space in the judicial defense judgment of patent prior user right,which affects the practicability and maneuverability of the patent prior user right restriction system in practice.From the perspective of patent prior user right and restriction and anti-restriction between patent right,this paper expounds and demonstrates the present situation and problems of patent prior user right restriction system,makes a reference study on the legal regulation of patent prior user right restriction in the United States,Japan and Germany,and puts forward some suggestions for perfecting the patent prior user right restriction system.This article is divided into three parts:The first part is the basic theory of patent prior user right restriction system.The first part mainly introduces and analyzes the restriction system of the patent prior user right restriction system from the following perspectives: the generation of the patent prior user right,the concept and legal attribute of the patent prior user right,the mechanism and Principles of the restriction of the patent prior user right to patent right,the restriction of the patent prior user right and its institutional elements.The second part analyzes the current situation and problems of the patent prior user right restriction system in China from the following four aspects: subject,object,time limit and exercise scope.First,the legislative attitude of "lenient before" makes it difficult to effectively define the scope of the subject of the patent prior user right;the situation of non-Practicing entities(NPE)is relatively strict,and lack of restrictions on the subject of non-Practicing entities.Secondly,the identification of "same product" or "same method" is unknown,and there is a deviation in the standard of "necessary preparation".Thirdly,the invalidation time point of patent prior user right is not defined,the lack of restriction on “non-continuous prior use”.Fourth,the scope of the prior user right is too narrow.The third part is based on the existing problems in China’s patent prior user right restriction system,drawing on extraterritorial experience,and putting forward suggestions for the optimization of China’s patent prior user right restriction system.For the subject of patent prior user right,it is advisable to adopt the "generalization + enumeration" to stipulate the subject of prior user right,and at the same time to add a restriction clause to the non-Practicing entities;as for the object of patent first-use right,it is suggested to introduce "the same principle" into the identification of "the same product and the same method";to standardize the condition of " necessary preparation ";as for the restriction of the term of patent prior user right,It is necessary to define the expiry time of the patent prior user right and the continuity requirement of the behavior;as for the scope of the exercise of the patent right of first use,it is suggested to expand the type of the exercise of the patent prior user right,and reasonably define the scope of implementation.