Study On The Prior User Right In PRC Patent Law

The prior user right in paten law( hereinafter simply called "prior user right") is the right to continue to use the invention within original scope after the subject matter patented if before the valid filing date( including priority date), any person has commenced to use an invention or done serious preparation for so doing, not be deemed an infringement.The provision of prior user right in our nation is merely specified in Item 2 of Section 1 of Article 63 in PRC Patent Law as follows: Where, before the date of filing of the application for patent, any person who has already made the identical product, used the identical process, or made necessary preparations for its making or using, may continue to make or use it within the original scope only, not be deemed an infringement.From the provision of the prior user right in PRC, we may learn that the body of this right are those who has already made the identical product, used the identical process, or made necessary preparations for its making or using. And persons who has sold and used the identical product before the valid filing date, do they have the prior user right or give their another exit in law only if their act don't destroy the novelty of the filing otherwise their act is deemed an infringement, this is unfair to them. The next problem is the time condition, pursuant to the provision of our prior user right, the time condition is before the filing date, if there is a situation existing priority date, is the time selection the valid filing date or the priority date? The technology of prior user right may stem from others? The act may be interrupted? Is there limitations to transfer or license of this right? Do the prior user has the marking obligation? and so on. These are problems in our prior user right legislation.