Studies on the Prior Art Plea of China Patent Law--and a Discussion on Patent Related Revision

• Main Authors: Hsu, Kai-Ting, 許凱婷
• Other Authors: Wang, Wen-Chieh
• Format: Others
• Language: zh-TW
• Published: 2009
• Online Access: http://ndltd.ncl.edu.tw/handle/83672151084633667114

碩士 === 國立交通大學 === 科技法律研究所 === 97 === As Taiwan’s government release the restriction on investing in China gradually, more and more Taiwan’s industries go investing in China. Those who invest in China cannot avoid some problems on patent, including patent application, patent protection, and being accused of patent infringement. Nevertheless, research on China Patent Law in Taiwan is few and far between. In this way, it’s necessary to study China Patent Law thoroughly. Many accused in China would like to demur on the prior art in patent infringement cases. Before the third revision on China Patent Law, 27 December, 2008, there is no rule on prior art plea in China Patent Law; however, the prior art plea is still recognized practically. After the third revision on China Patent Law, the prior art plea has been recognized as a defense raised by the accused in patent infringement cases. They all show the importance of the prior art plea in patent litigation of China. Furthermore, it happens to meet the third revision on China Patent Law when writing this article, so this article also discusses the parts related to the prior art plea in the third revision. In order to figure out how the prior art plea used by the accused and judged by the court in China now, this article analyzes some patent infringement cases by empirical study. This article hopes to give those who wants to raise the prior art plea some advise to ensure his/her prior art plea would be accepted by the court. This article has some suggestions to the third revision of China Patent Law. First of all, identify the status of the Patent Reexamination Board. Secondly, the patentability of appearance design patent should include non-obviousness. Thirdly, “known to the public” in China Patent Law §22(5) shall interpret as “available to the public,” like Europe and US.