An Empirical Study On The Judicial Application Of Conflicting Application Defense

Conflicting application defense is a defense method often used in patent infringement litigation.Although the Patent Law(2020)still does not put the conflicting application defense into the law,empirical research has found that the conflicting application defense has been applied in judicial practice.However,there are no uniform standards and norms for the detailed application rules of the conflicting application defense in judicial practice,such as the application precondition and scope of the conflicting application defense,the comparison method,the comparison order and the comparison standard of the conflicting application defense.Such a situation will not only make it difficult to apply the conflicting application defense effectively,but also cause different judgments in the same case in different district courts,which do harm to the credibility of the judiciary.A conflicting applications can evaluate the novelty of subsequent patent,while a conflicting application defense can only make the alleged infringing technology or design eliminate the suspicion of infringement.Unlike the current patent law,invention,utility model patent and design patent can mutually be conflicting applications.In terms of nature,the conflicting application defense is both a non-infringement defense and an infringement exception defense.The application of the defense of a conflicting application shall comply with the following rules: The object requirement of the applying precondition is that the invention or utility model patent should and can also be used as a conflicting application to defend the case of accusation of infringement of the design patent;the design patent should also can be used as a conflicting application to defend the case of accusation of infringement of the invention or utility model patent.No matter whether it is the same infringement or equivalent infringement,the conflicting application defense can be applied.In addition,It is not necessary to establish the infringement as a prerequisite for judging the defense of the conflicting application,and it can firstly judge whether the defense of the conflicting application is established or not.The judgment standard inherit the existing technology defense standard,when the conflicting application is an invention or utility model patent,the "same or substantially the same" standard is adopted,and when the conflicting application is a design patent,the "same or similar" standard is adopted.It is suggested that in the fifth revision of the Patent Law,the provisions on the novelty of designs in the second half of the first paragraph of Article 23 should be deleted,and the concept of conflicting applications should be established in Article 22.In addition,Article 67 establishes a defense clause for conflicting applications.In Article 67,the article establishes the defense clause of conflicting application,and refines the applicable rules of defense of conflicting application through judicial interpretation.