On The Patent System In The Defense Of The Principle Of Public Knowledge

The patent right is a kind of monopoly right. And it will bring a kind of privilege to patentee. The patent law promotes the development of science and technology and the progress of society by acknowledging the privilege. So, the patent system should not only protect patentees' rights but also restrict the patent right .In the cases of patent i nfringement j udges should b alance t he p atent i nfringement and patent p lea. The principle of prior art plea is an important principle to restrict the patent right reasonably. And we are lack of regulations of this principle. It causes judges, patent attorneys and parties feel puzzle. So it is necessary to study the principle.This paper includes three parts.First, introducing the legal base of the prior art principle. It is certain that the reason of plea is "prior art" by comparing the "prior art" and "free prior art" . And by introducing the prior art plea in Germany, France and Japan and theories and cases of application of principle in our country, and analyzing the legal gist and values of this principle ,it is concluded that the principle should be applied to all sorts of patent infringement cases, including the realm of the same or similar infringement. Second, introducing the application of the principle of the prior art. The principle includes two conditions:(l) The evidence should be prior art. (2) The whole scheme of technology is the same as prior art or equate to prior art. The evidence can be a single technology or some technologies combined easily. One patent application, which applied earlier than the application date of patent involving in the case but publicized later than it can't be prior art. And in order to judge whether the defendant used prior art the judge should compare the accused technology and prior art.Third, the paper gives some advice to perfect the principle. The technology publicized through Internet can be treated as prior art. And the plaintiffs and defendants can invite experts to give advice on technology.