Research On The Implementation Of Patent Prior Right System

The provisions on the preemption system are mainly reflected in Article 69 of the Patent Law.Preemption is one of the five situations that are not regarded as infringement of patent rights,and it plays an important role in the defense of patent infringement.In 2009,the Supreme People’s Court issued a judicial interpretation(Hereinafter referred to as "judicial interpretation of patent infringement"),which made further provisions on the original scope and necessary preparations in the provisions of the Patent Law.Due to the late research on patent law in China,in order to be in line with the international patent system,we had to use foreign legislation to introduce a prior-use system.However,under the social environment of our country at that time,legislation and judicial interpretation did not make a clear establishment condition So that our country’s prior rights system has not played its due role.Since China has not studied the issues related to the patent system thoroughly,the provisions on the prerequisites for use rights are flawed in the legislation.The academic community has also produced many theoretical disputes,resulting in a situation where the applicable laws are not uniform in judicial practice.The main issues discussed in this article are: 1.The controversy about the optional elements of the "necessary preparation" and the second and third elements;2.The unreasonable existence of the quantitative standards for the "original scope";Whether the sale and use belong to the "subsequent implementation behavior type" and whether it includes import behavior.In view of the above main problems,this article based on the analysis of the nature of the right of first use,combined with the relevant foreign regulations,through a systematic and rational analysis,put forward five optimization suggestions: First,it is more reasonable to judge whether the "necessary preparation" is made by the two elements.,And should also increase the requirement of immediate production under the requirement of consistent subjective intention and objective behavior;2.The definition of "original scope" should adopt the maximum input standard in the field of the product;3.Sales,promised sales and use are in line with The behavior of the law of economic development should belong to the "subsequent implementation behavior type",but the nature of the import behavior does not meet the substantive requirements of the prerequisites for the right to use,so the import right should be excluded;4.The prior disclosure of the implementation behavior can affect patent authorization However,it does not affect the generation of prior-use rights;5.When a court hears a patent first-use right dispute,the prior-use right defense should be placed after the existing technical defense and the legal source defense,as the final reason for review.This article is based on the current situation where laws and regulations are inconsistent with judicial practice.It comprehensively studies various viewpoints in academia and puts forward optimization suggestions for perfecting the system of prior rights,hoping to play a modest role in enriching the theoretical system of prior rights.