Study On The Application Of Existing Art In Patent Infringement

Existing Art defense is an important principle in patent infringement litigation. It is usually raised by the alleged defendant, and the court must consider the defense based on this principle. However, because of our model of separation of powers, there is a contradiction in the application of Existing Art defense in the judgment of patent infringement. There is also short of scientific research on its specific application rules. The revised "Patent Law" for the first time defined the Existing Art defense in patent infringement litigation, but in the court system, there is no universal standard about how to apply the Existing Art defense. Based on the analysis of the Existing Art defense theoretically, combined with the current judicial practice, this thesis attempts to seek a more rational legal basis and establish integrated applicable rules. This thesis is composed of three parts: introduction, main body and conclusions. The main body is divided into three chapters.The first chapter introduces the concept of Existing Art defense, and focuses on its legal basis and values. Existing Art defense is a legal mechanism which allows the alleged infringer to raise a defense based on the fact that the patent in action is publicly known prior to the application date of the patent. The value of the Existing Art defense is that it can balance the interests of patent holders and the public, and it can greatly improve the efficiency of litigation. The second chapter makes an arrangement and comparison of the relevant cases in Germany, Japan, and China firstly. Secondly, this chapter discusses the applicable scope of the Existing Art defense in patent infringement case. Some scholars believe that Existing Art defense only applies to equivalent infringement. However, the new revised patent law and current judicial practice support the viewpoint that it is applicable to identical infringement and equivalent infringement.The third chapter discusses the specific applicable rules in patent infringement cases which mainly involves the following three questions: First, the considerations the court shall take when applying the Existing Art defense. These include: the raise of the Existing Art defense and its burden of proof; citing an Existing Art which shares the same theme; the technical solutions in action is same or not materially different from Existing Art. Second, the court should determine whether the Existing Art defense is established in advance, if not, and then the court can decide the defendant responsible for patent infringement. Third, in determining whether the Existing Art defense is established, the court shall make an abstract description of the accused technical solutions in accordance with the patent in action, and then compare the accused technical solutions with the Existing Art.