Research On Patent Non-infringement Defense

According to the current patent legal system, the patent infringement defense can be divided into several types, such as declaration of avoidance, non-infringement defense and non-deemed patent infringement and so on. The courts can not handle the issue of patent efficacy, as the Chinese patent administrative model. The conformation of patent needs to be examined by the Board of Patent appeals and interferences. The procedure is so long and complicated that the defendant shoulders a big burden and the result of the lawsuit may become uncertain. However, the nature of the non-infringement of patent is based on whether the action of defendant meets the constitutive requirements. The non-infringement of patent defense include existing technology/design defense, not for business purpose. The foreign countries, such as America, Japan, German, set and improve the legal system of existing technology on after another. Patent Law of the PRC emended in 2008 confirms the defense of existing technology/design. The system experiences public technology, free common sense and existing technology and the control method is more mature.This text starts from the issue of existing technology/design and discusses the application of this system. The application standard and comparison method is described here and preferred in theory and practice to improve the application level. Legislative proposal involved with the relationship between existing design and trade mark, copyright, enterprise name, image right, well-known package and decorate is described.