Applicable Research On Patent Infringement In Patent Infringement Litigation

When an action for infringement of patent comes to a court, usually, the people’scourt will firstly determine the scope of protection of the patent right according to thepatent claim shall and files concerning on patent provided by plaintiff, and thenanalyze the technical proposal accused by the plaintiff, and finally makes a decisionon whether this charge is reasonable or not. As for the defendant, what he should do isto prove the technology he uses is out the scope of protection of the patent right ormake a request of invalidation of a patent right to SIPO(State Intellectual PropertyOffice), proposing that the patent right raised by the plaintiff is invalid, by which thedefendant can prove that he is irresponsible for the charge. However, the verificationof patent right and the judicial review of infringement of patent are separate. Eventhough the defendant holds the view that the technology he uses is an prior art, hemust make a request of invalidation of a patent right to Patent Re-examination Board,which sinks himself into a disadvantage.The prior art defense system finally came into being in the revised act of “patentlaw” in the form of law in2008. Thus, in face of being charging of patentinfringement, the defendant can refer to the prior art to defend, the people’s court canmake a judgment on his own without referring to the Patent Re-examination Board.The prior art defense system can not only improve the efficiency of lawsuit, reduceburden of parties，but also benefit for suppressing malicious prosecution.As a new system, the prior art defense system is imperfect, the scholars holddifferent opinions on the range of application, the order of comparison, the standardof success and so on.The first part introduces the basic knowledge of the prior art defense system,including definition, origin, value and developing history of this system.The second part is about the scope of the prior art which can be used to defendfrom the aspects of “time limit”,“space limit” and “whether known to us all or not”.This part also lays stress on the prior art the issue of simple combination, proposingthat the prior art can not only be a prior art alone, but also can be many combinations of the prior art.The third part focus on the existing controversy of the prior art under thecircumstances of the equivalent of the patent infringement and the equal of the patentinfringement. This part also introduces the application of the prior art defense systemof America, Japan and German under the condition of the equal of the patentinfringement and comes up with some suggestions for the prior art defense.The fourth part mainly states the identification of the prior art defense, includingthe order of comparison, the standard of success and so on. In this part, the writeralso introduces three opinions for the standard of success of the prior art defense:novelty, creativity, and similarity and discusses the establishment of the standard ofcomparison from the aspects of legal basis, realistic basis and legislative basis.The last part concerns on the differences and features of the prior art defense andinvalidation proceedings, aiming at providing reference for the defendant.