Research On Prior Use Right In Patent System

Patent system is an intellectual property system which was the first to beapproved and established by lawmakers, meanwhile, it is also the " youngest ","most dynamic " system in all types of intellectual property system because of themost active factor productivity in aspect of adjustment.It was created to promote the progress of science and technology, promotingthe application of new technologies, bringing the science and technology intopowerful productivity, thus contributing to the rapid economic development andsocial progress. However, because the vast majority of countries have taken thefirst application system, the possible problems come out: for the same invention,the very person who first invented may not be granted a patent because of the nottimely application for the patent.This is unfair for those people who first invented and it might dampen people’s enthusiasm for technology development, besides it is not consistent with thelegislative purpose of "Patent Law " made to "encourage inventions, improveinnovation capacity, promote scientific and technological progress and economicand social development,". So it is necessary to establish a reasonable balancesystem to protect the rights of the first inventors, that is, prior use right system.The prior use right is provided as in China’s Patent Law Article69(2), and ithas been further improved the " Supreme Court to hear patent infringementdisputes the interpretation of the application of Law ", enacted in2009andimplemented from January2010. However, there are rarely successful cases in theuse of prior use defense in the current practice, the academic study of the prior useright is not very complete. As for concepts of the first the nature of rights,"original scope" and the "same products and methods,""necessary preparations""continue to manufacture and use,," there are still many controversial opinions,besides there are also still issues that need attention in depth when the prior useright using in the practical application.This paper will begin with the application perspective, first with elaborationon the basic theory of prior use right, including the concept and nature, etc., thenelaborate the generating conditions and the right effect of prior use right, andfinally explore the issues that need attention when defense with prior use right. After the author made the main point or endorsed the views, the real cases inpractice are corroborated with the application as the basic starting point.The first part is the basic theory of prior use right s. Firstly, brief introductionof prior use right concept. Secondly, analyzation of the nature of prior use right s.This part is the focus of the chapter, with the right to determine the nature of thefirst to get a clear prior use right conditions and the right to use first with a baserange. Finally, introduction of the prior use right systems in other countries,providing different ideas for continuing to improve our using of them.The second part is about the right conditions for prior use right. Theconditions to enjoy the prior use right are clearly existed from the time andgeographical conditions generated, implemented inventions as well as the sourceof the first act with a specific range of aspects. This chapter is focused on definingthe specific behaviors.The third part is about the effect of prior use right. After the conditions areright to produce the prior use right and access to it, the enjoyment of the prior useright is not without boundaries, there is its own potency range. In particular, theclear meaning of the original scope, the continued manufacture and meaning ofuse need to be defined.The fourth part is the defense of prior use right. It focuses on how to applythe first patent dispute with defense rights.