Research On The Application Of The Prior Right To Use Patent

Technology plays an important role in the process of social development and becomes a booster of it.The emergence of papermaking technology has greatly promoted the development of social civilization and made many achievements of civilization remain.The advent of steam technology has promoted the Industrial Revolution.Entering the information age,technology has undoubtedly become a powerful weapon for stability and prosperity of a country.Many countries have realized that only by occupying the technological high ground can they remain invincible.In order to protect the technology enjoyed by various subjects without being infringed,the patent legal system came into being.The soul of patent law is to the monopoly rights of obligee,so that they can enjoy technology dividends and recover the cost of technology development in the application of technology.However,the right are created by law and only established by the applicant,which can create problems with malicious applications.In order to protect the interests of the subject of prior use of technology,the patent law stipulates the system of prior use.At the beginning of the patent law,the right has been stipulated,but the applicable standard of various elements are not very clear.This paper discusses the five parts,based on the theory of the prior right to use patent,analyzes the deficiency of it,and delineates the optimization path of it in the context of foreign relevant criteria.Part one:Introduction.Firstly,the background of the topic is discussed from the applicable dilemma of the decision requirements of the prior right to use patent.It is believed that the court has conflicting judgment views about the applicable dilemma Such as "technology source","same","necessary preparation" and "original scope".Therefore,it is necessary to study the right in detail.Secondly,it discusses the theoretical and practical research significance of this subject which base on clauses about the right and practical needs.Thirdly,this paper analyzes the current research status from the research results of various scholars on the right and lists the viewpoints of the academic circle on the judgment requirements of it.Finally,from the perspective of case analysis,variety of research methods are adopted to carry out the research of this subject such as the cost transaction theory of law and economics,the comparison of extraterritorial institutions.Part two:Theoretical basis about the prior right to use patent.Firstly,from the development history of patent law system and the monopoly of it,the paper discuss the mode of patent right acquisition.There are mainly the first-to-file system and the firsto-invent system about the right.Compared with the first-to-invent system,It’s easier to identify the user by the first-to-file system and is beneficial to maintain the stability of patent rights.Secondly,it discusses the original intention of establishing the prior right to use patent and analyzes the nature of the right from the Angle of interest balance.The prior right to use patent should be regarded as a right of defense rather than an independent right,otherwise it will harm the foundation of patent right.Finally,based on the existing provisions of extremely relevant judicial interpretations in the patent law of our country,it analyzes the various components of the prior right to use patent.Part three:The deficiency of application about the prior right to use patent.Based on existing regulations and cases in practice,there are four major deficiency in the application about the right in our country such as unclear "technical source",unclear meaning of "same",inconsistent judgment standard of "necessary preparation" and inaccurate judgment standard of "original scope".First,whether the third party in the requirement of "technology source" includes the patentee.Second,whether the same includes almost the same,the same coverage range is broad.Third,the theory of selection and common requirements exist in the application about "necessary preparation".Fourth,the selection of quantification or qualitative about "original scope" is controversial,some cases have broken through the existing quantitative standards.Part four:The extraterritorial investigation about the prior right to use patent.The right under U.S.patent law is limited to one year and is limited to commercial use.The former will shrink range of protection of the right,which is not conducive to protecting the interests of the prior user.The latter will make some non-commercial acts excluded from the scope of protection,which is part of the first users can not get relief.Japanese patent law strictly excludes the patentee from the range of the prior user,but the prior user can learn the technology from another third person.Business preparation in the Japanese patent law can be regarded as a common requirement standard.German patent law stipulates that the first user can enjoy the right,but subject to the six months.As for the "original scope",three countries adopt qualitative standards.The United States is in line with the theme,Japan is in line with the scope of business purpose,and Germany is in line with the location and does not limit the scale of production.For our country,it can not be limited to commercial use and time,and the "necessary preparation" is not required to implement the intention.It should be included in the Patentee,and can refer to change the scale of production.Part five:Optimizing the content of the prior right to use patent.In order to solve the problem from the Part three and answer the problem caused by the grace period,the object of "technology source" should include the patentee.Based on the judgment logic of the right and the certainty of patent infringement judgment criteria,it is considered that the patent infringement judgment criteria can define "same" of the prior right to use patent.Based on the status of technical preparation and the importance of material preparation,it is considered that "necessary preparation" should be judged by selecting elements.According to the development law of market economy and the benefit of the former users,the "original scope" should be judged by the qualitative standard.