Prior art defence in patent litigation: A legal quagmire?
The prior art defence strategy has become increasingly important and popular for alleged infringers in patent cases. However, its framework suffers from uncertainty and some technical defects
Issue: December 2011/January 2012
Keywords (click to search):
prior art defence
patent litigation
IP
Fangda
Similar to some civil law countries, China implements a split system in which patent infringement is determined by the courts and an invalidity challenge is heard by the Patent Reexamination Board (PRB) of the State Intellectual Property Office (Sipo). This system enables the PRB examiners, arguably more technically knowledgeable than court judges, to evaluate patent validity while the court decides infringement issues. Thus, a patent infringement dispute is frequently fought simultaneously on two fronts: before the court and at the PRB. If the infringement case progresses more quickly than the parallel invalidation process, the alleged infringer is at risk of losing the infringement case even if the patent does not have the required novelty or inventiveness. While courts may stay the infringement case pending the outcome of the invalidation process, they are not required to do so if the asserted patent is an invention patent.
To alleviate the issues caused...
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