The Application Of Prior Art Defense In Patent Infringement Lawsuit Of Chinese Medicine Compound

Prior art defense,also known as public knowledge technology defense,refers to that in a patent infringement lawsuit if the alleged person is able to prove that the technology he has implemented is prior art,he shall not be liable for infringement.The standard for defense of prior art is that the accused infringing technology is the same or no substantial difference with prior art.The application of prior art defense in patent infringement litigation of Traditional Chinese Medicine compound is particularly complicated.On the one hand,the parties and judges have different understandings on the legal nature,comparison order and establishment standard of prior art defense.On the other hand,due to the complexity of the theory of traditional Chinese medicine compound,it is not easy to determine whether the accused infringing technology is "the same" or "no material difference" with the existing technology when the existing technology defense involves the addition and subtraction of the compound,the replacement of the medicine and the functional indication.In the patent infringement lawsuit of traditional Chinese medicine compound,the examination of the defense of prior art must be centered on the patent claim,that is,the accused tort must be compared with the patent involved,and the defense of prior art must be examined when the accused tort belongs to the patent involved.In the review process,according to the actual situation such as changes in the proportion of medicine,replacement of medicine,addition and subtraction of medicine,functional indications,etc.,to investigate whether the technical characteristics of the accused infringing compound technology and the existing technology are the same or no substantial difference.If the two are the same or there is no substantial difference,the prior art defense is deemed to be established.For inventions involving compound traditional Chinese medicine products defined by the method of preparation,it is not possible to simply compare whether the process steps and parameters are the same or equivalent to those disclosed in the prior art,but to comprehensively investigate the influence of the preparation method on the ingredients,function and efficacy of the final Chinese medicine.Where the prior art defense involves the invention of methods with process steps and parameters limited,if the process and parameters in the accused infringing technology are only a simple replacement of the commonly used technical means in the industry compared with the prior art plan,It did not produce unexpected technical effect on the preparation process of traditional Chinese medicine itself,nor did it produce unexpected technical effect on the ingredients,efficacy and functions of the prepared traditional Chinese medicine.If the same technical effect is achieved by basically the same means,it shall be deemed that there is no material difference between the accused infringing technical and the prior art,and the defense of prior art shall be established.