Prior Art Defense In Patent Infringement Litigation

Prior art defense is a kind of defense that the accused infringer didn’t doubt thevalidity of the patent through the Administrative procedures, but proved that thetechnology he used was the same as the existing technology or has no substantivedifferences. In order to exempted from any liability by prove that infringement is notestablished. The cases about the prior art defense are not uncommon in the judgmentof judicial practice, but different courts show different attitudes on prior art defense.This paper comprehensively use empirical analysis, literature methodology,comparative research and value analysis, aims at in-depth analysis, interpretation anddiscussion the prior art defense system in theory and practice. In this paper, startingfrom domestic judicial practices, some typical cases are analyzed and classified, inorder to summarize the attitudes of the courts on how to apply the prior art defense inthe litigation, and then I will point out the issues existing in legislative, judicialpractice and the theoretical study, analyze the grounds and try to put forwardlegislative proposal for the development of prior art defense based on the origin of thesystem. There are three parts in this paper.ChapterⅠis the empirical analysis on the typical cases concerning prior artdefense in the patent infringement. In this paper, several typical cases are selected andsorted out to classify the attitude of the courts on how to use the prior art as a plea ofdefense. Mainly concentrated in the differences between courts in logical order,standards of judgment, and judgment method when use the prior art defense. On the ground of this, I will point out the essence of this issue that the current legislation onthe prior art defense is not specific and clear; On the other hand, some court confusedthe prior art defense system and invalidation of censorship.Chapter Ⅱ is the analysis on the controversial issues in the prior art defenseform the theoretical point of view. And put forward the author’s own views. In thispart, I will summarize the different points of view about the prior art defense in theorybased on the logical relations. And try to find the nature of the prior art defense basedon the origin of the system, as well as the current provisions of the legislation. Thatthe prior art defense should belong to the defense of the rights of obstacles which isbelong to the defense of the fact. In the purpose of realize the balance of the interestsof the public and the patentee, and promote the judicial reunification, based on thelegal basis of the prior art defense, and taking into account our current patent system,I advocate the same or equivalent standards and recommended analyzing method ofadaptation therewith.Chapter Ⅲ is about the legislative suggestions of improving the prior artdefense system. With the analysis and comments on our domestic legislative situation,combined with the considerations in the chapter Ⅱ, the paper raises thecorresponding solutions to explicit the nature of the system and the standard andmethod of the contrast.