On The Defences Of Patent Infringement

The interest balance principle is the emperor principle of the Intellectual Property Law, and the Patent Law as a part of the intellectual property law is no exception. The Patent Law regarding the patent which obtains legally provides the legal protection, and the patentee may request the patent management organ or the people's court to protect his right when some people infringes the patent. However the exercises of any right has its boundary, beyond its boundary to exercise will violate other people or public's benefits. In order to balance the patentee's benefit and the social public's benefit, the Patent Law focuses on proctecting both the patent's benefit and public reasonable benefit in the system design. Because of patent own characteristics and the huge economic interest, the relevant patent litigations emerge one after another incessantly, the most of which is the patent infringement lawsuit. Therefore, how to protect the patentee interests and at the same time provide the infringer accused with certain defences, in order to better achieve the purpose of the patent system, has become a realistic topic of the Patent Law. Based on this, this thesis mainly focuses on the problem above.This thesis divides the defense incidents into general defences and special defences according to the different law used by the infringer accused in the patent infringement defense. Special defences are discussed mainly according to the amended Patent Law in 2008 and the relevant judicial interpretation , and the basic logic defers to possible defense effect which the defences achieved actually. It mainly contains the non-treatment of patent infringement defences, reduction or exemption defences and equal infringement defences. The general defences are discussed mainly combining with the relevant provisions of the Civil Procedure Law and the Contract Law, which include prescription defences, contract defences and evidence defences.This thesis consists of five parts:The first part is the summary of the patent infringement of defences. Firstly, we define the meaning of the patent infringement of defences and the defences. The patent infringement of defences refers to that the infringer accused proposes the causes of reducing or relieving his responsibility aiming at the lawsuit request of the patentee and the interested person, in order to resist the lawsuit request of plaintiff in the patent infringement litigation. The defences refers to that the infringer accused provides untenable or not completely tenable fact used to prove the lawsuit request of the patentee and the interested person. Secondly, we analyze the theory basis which endow the infringer the certain defences , that is the principle of interest balance, and the goal which the patent system set up. Finally, we discuss practical significance of researching the patent infringement of defense, combined with the need of our country present economic development and the realistic conditions of numerous patent infringement lawsuit.The second part discusses the non-treatment of patent infringement defence.The theory basis of this part is the 69th provision of the Patent Law. First, we analyze the reason of the exhausts of patent right, that is, the obligee has obtained the benefit to sell for the first time, and should not repeatedly make a profit on the identical product. The author evaluates the difference between the exhausts of patent right and the default permission theory ,which lies to the reply of the question, that is, the exhausts of patent right is one kind of intrinsic attribute of the patent or decided by the bilateral agreement. We introduce briefly the international exhausts theory and domestic exhausts theory, and pointed out that our country used the international exhausts theory of patent in fact, namely our country allows the parallel import of the proprietary product, which both tally with the national condition of our country and can import the proprietary product that our country is not able to manufacture at present or has not insufficient incapacity to manufacture .Second, the defences of prior user rights. We clarify the defences of prior user rights are remedial measure of the principle first to applies. The nature of prior user rights is not only one kind of civil right but also one kind of defence right, simultaneously we discuss the applicable condition of the defences of prior user rights,and think that"the original scope"should not surpass the output which the original equipment's normal capacity might achieve before the day of the patented claim. Third, the defences of temporary transit. We clarify about temporary transit combined with the Paris Convention ,and this stipulation's reason lies in promoting international trade and safeguarding the freedom of international transportation, as well as the question which should pay attention in application. Fourth, the defences of scientific research and experimental use. This stipulation's reason lies in encouraging the science and technology research. We should pay attention to discriminating the goal between scientific research and the experimental use in application. Fifth, the defences of the Bolar exception. This part is the new provision. This article of stipulation is the exemption principle of patent infringement suitable for the drugs and the medical instrument and so on related domain. This system stems from the document of drugs patent infringement that is US's Roche company sued the Bolar Corporation, this system's significance is that it can endow the medicine production enterprise with the right to carry on the clinical trial of the drugs and medical instrument and the right to apply production permit before expiration of the patent protection deadline. The author thinks that the patent medicine and the patent medical instrument's limits should pick the expansivity explain, in order to protect well the benefits of our country's Medicine Enterprise.The part three is about reduce liability or exempted from liability. Firstly, the invalid announcement defences. The slight defect patent's existence and the estimation property rights' nature is the invalid announcement procedure existence rational. The purpose of the invalid announcement is causes the patentee to lose the basis of claim right, make use of history estoppel principle to defence or further perfect the evidences of the widely-known technology. The invalid announcement defence should defer to the patent invalid announcement procedure to carry on, simultaneously pointed out the present authority separation system brings contradiction. Secondly, non-intentional behavior defences. its legal basis is in order to protect the third party acting in good faith. The article increases the reason of offering for sale is its the preliminary behavior for saling, impossible to bring the substantive violation to the patentee.The infringer must prove that it does not know the circumstances of the matter, and proves the products' legal origin. Thirdly, patent abuse defense. This paper combines with the TRIPS Agreement to point out that in relevant laws of our country to regulate the behavior of patent abuse, to discussing its meaning, constitutive requirements and the abuses behavior in different classification.The Part four is about equivalent infringement defences. Firstly, history estoppel defence. The purpose of the history estoppel is the range of patent protection to the consistent explanation. Applicable condition is that patentee change substantial rights protection range and wrote in application documents, This principle is suitable for the invention, the model utility and the outward appearance design, is suitable the literal infringement and also suitable equivalent infringement, explains the claim of right rule, is also one kind contradicts the position. Secondly, widely-known technology defences. On the basis of the legal provision comparison that pointed out existing technology adopt absolute novelty standards and must be a complete technical program. In part five, we discussed other defences, that is we have mentioned general defenses in the text. According to the Civil Law of the People's Republic of China and the Patent Law of the limitation of action for the provisions for different situations, and has carried on the elaboration on the patent of invention temporary period of protection patent working cost's limitation of action. Secondly, contract defense. According to the infringer with the patentee or other obligee signed the patent exploitation license contract and against the patentee of different classification, and discussed on the basis of the possible effect of defense; Thirdly, evidence defense. According to the Civil Procedure Law about the relevant provisions for evidence we discussed deeply about the reversing of evidence of methods patent infringement litigation, and pointed out when is suitable the evidence contradicts should observe presents evidence the time limit stipulation and the collection evidence method, the way and the method must be legitimateThe innovation of this thesis is that the author indicates the practical significance of the new modified Patent Law and advances some opinions about system itself by contrasting new provision with old provision of Patent Law. We discuss each defences deeply and carefully, and then indicate how the charged infringer makes use of current provisions within the framework of the law, which has important significance for protecting interests of the charged infringer.