现有技术抗辩现行规定的不足与完善

现行法关于现有技术抗辩的规定仅适用于在先产品抗辩。对于在先文献抗辩,其成就条件应修订为:被告产品具备在先公开文献记载的现有技术的全部技术特征,在先文献所载技术具备原告专利权保护范围的全部技术特征。对在先专利之外的其他在先文献记载的现有技术范围的界定,应当遵循一定的规则。

The Deficiency and Perfection of Prior Art Defense in Chinese Patent Law

The provisions of prior art defense in Chinese patent law is only applicable to the defense based on prior product. For the defense based on prior publication,elements of the provision should be:defendant’s products should have all the technical features of prior art described in prior publication, prior art described in prior publication should have all the technical features of plaintiff’s patent claims. To define the scope of protection of prior art described in prior publications expect prior patent, some special rules should be followed.