Conditions for the establishment of patent preemptive right

The right of first use refers to the fact that, according to Item 2 of Article 69 1 of the Patent Law, the same product has been manufactured, the same method has been used or necessary preparations have been made for its manufacture and use before the patent application date, and it is not regarded as infringement of the patent right.

Components:

1. Before the patent application date (priority date), the same product has been manufactured, the same method has been used, or the necessary preparations for manufacture and use have been made;

2. Continue to manufacture and use only within the original scope;

3. The accused infringer obtained the technology through legal channels.

Legislative intention and reason:

1, protect the patented technology first.

2. Ensure fair competition.

Difficulties in understanding:

1. All actions before the filing date shall not lead to the disclosure of the contents of the patent application, otherwise it will directly destroy the novelty of the patent application;

2. The "patent application date" mentioned in this paragraph includes the "priority date";

3. "Original scope" usually refers to the production capacity before the application date, not the production capacity at the time of the dispute;

4. The way for the person claiming the right of first use to obtain the patented technology content must be legal, which can be obtained directly or indirectly from the patentee or legally from another independent inventor.

Relevant judicial interpretations are as follows:

The Supreme People's Court's interpretation of some issues concerning the application of law in the trial of patent infringement disputes.

Article 15 The people's court shall not support the claim of the accused infringer for the preemptive right based on the illegally acquired technology or design.

In any of the following circumstances, the people's court shall determine that it has made the necessary preparations for manufacture and use as stipulated in Item (2) of Article 69 of the Patent Law:

(a) the main technical drawings or process documents necessary for the implementation of the invention and creation have been completed;

(2) manufacturing or purchasing major equipment or raw materials necessary for the implementation of inventions and creations.

The original scope stipulated in Item (2) of Article 69 of the Patent Law includes the existing production scale before the patent application date and the production scale that can be achieved by using the existing production equipment or according to the existing production preparation.

After the date of patent application, the prior obligee transfers or permits others to implement the technology or design that has been implemented or made necessary preparations for implementation. If the accused infringer claims that the implementation falls within the original scope, the people's court will not support it, except that the technology or design is transferred or inherited with the original enterprise.