Conflict And Reconciliation Between Disclosure Without Loss Of Novelty And Prior Art Defenses

China’s current patent law provides that our novelty grace period is narrowly defined.Novelty is one of the important conditions for determining whether a patent application can be granted.An invention or creation that has been disclosed before the filing date becomes prior art and does not possess novelty,and thus cannot be granted a patent.In order to promote the level of scientific research and technological development,enable early disclosure and exchange of technology and encourage innovation,China’s patent law proposes a system of disclosure without loss of novelty,which is essentially a kind of disclosure,and the disclosed technology should rightfully fall within the scope of prior art.However,the current patent law provides for an exception for prior art,where the technology does not lose its novelty and can still be granted through an application for a patent if certain substantive and procedural elements are met.However,the defects of the grace period system in China,such as the vague meaning of the legal provisions,the limited and narrow scope of protection and the imperfect interface with the prior art defence system,have led to a conflict between the prior art defence raised by the alleged infringer and the right holder’s claim that his technology is entitled to a grace period for novelty in a patent infringement dispute.If the contradiction between the two systems is not dealt with,the grace period system will be null and void and will not achieve the legislative purpose of quickly resolving the need to disclose the results of inventions and promoting the exchange of technology.This article analyses the causes of the problems between the two systems and examines whether technologies enjoying a grace period for novelty can invoke the prior art defence as prior art under different circumstances,and then proposes the introduction of a broad grace period to expand the scope of protection of the existing grace period,clarify the meaning of the legal provisions of the existing grace period and limit the scope of prior art through legal interpretation,in order to reconcile the prior art defence with that of disclosure without loss of novelty.The conflict between the prior art defence and disclosure without loss of novelty is then addressed.