On The Application Of Existing Technology To Defense In Patent Infringement Litigation

The third revision of the Patent Act of2008, the official introduction of the existingtechnology to defense, thus ending the embarrassing phenomenon that the system of patentinfringement litigation in use but no legal base。The basic pattern of patent infringementlitigation is to first determine the scope of patent protection, then judge that the accusedtechnology fall into the scope of patent protection. if the charged technology falls into thescope of protection, then the judge reviews whether the technology prescribed by law as notinfringement。Has long been chinese patent licensing department utility model applied is aform of surface censorship, thus leading to a lot of junk patents that does not possess novelty,practicality and creativity in our country，Some even access to a number of foreign patentdocuments, translates into chinese, and then directly submits the patent application as theirown inventions。These patented may launch patent infringement malicious litigation againstothers。Second, because of chinese patent principle of segregation of duties, the defendantoften need to apply for an invalid declaration, who will fall into the extremely unfavorablestate。To get a reasonable balance between the interests of patent holders and existingtechnology user, optimize court proceedings, the existing technology to defense waseventually introduced in the infringement litigation mode。Perfection does not mean theconfirmation of the system, there are still many controversial points about the application ofthe system in theory and judicial practice level,such as this case highlights the existingtechnology to defense whether to apply the same infringement;Comparison document whetherto be a combination of technologies;The existing technology to defense whether can prevail。These are the core problems of the existing technology to defense。This paper bases on theconnotation of the system，the system’s evolution of national development, practical needs ofexistence, then overviews the system。Followed by a combination of controversy the casecaused, summarizes the comparison of different theoretical perspectives, discusses thefollowing points combined with case:1. Existing technology to defense can be applied in thesame infringement。2.The comparison of the prior art defense is novelty or equivalentstandard。3The prior application of the existing technology to defense should be excludedin infringement litigation。This paper attempts to lay a good theoretical base for judicial practice to get reasonable application of the existing technology to defense by solving theseproblems。...