What is known technology?

Known technology refers to the technology that has been published in domestic and foreign publications, publicly used in China or known to the public in other ways before the patent application date. In patent infringement litigation, the accused infringer often opposes the patentee's patent right on the grounds that the accused infringer is a well-known technology, in order to escape the tort liability. Known technology defense is an important principle widely recognized and applied in patent infringement litigation at home and abroad, and it has also been implemented as a formal infringement judgment and handling principle in China's patent judicial practice. In all countries of the world, the determination of patent infringement is facing many problems, and there is no relatively unified understanding and practice. In China, due to the relatively short time for courts and patent administrative authorities to determine patent infringement, many issues are being actively discussed. At present, the judicial and academic circles have reached a considerable consensus on the application of known technology defense in the identification of equivalent patent infringement. When the alleged infringement occurred, the accused infringer proved that the accused infringer was not novel or creative compared with the known technology, and covered the content of the known technology. The accused infringer only implemented the known technology, so the infringement was not established. However, the effectiveness of technical equivalent protection does not belong to the scope of patent examination, and should be tried by the court in tort litigation. However, there are great differences in the community about whether to apply the defense of known technology in the same patent infringement judgment. The author thinks that the defense principle of known technology does not apply to the same patent infringement. When judging patent infringement, the court compares the claim with the accused infringing object on the basis of explaining the claim, so as to determine the protection scope of the claim and judge whether there is infringement. However, those who hold the view that the defense principle of known technology is applicable to the same patent infringement believe that when the scope of patent claim is the same as that of the accused infringer and the known technology, the accused infringer should be directly compared with the known technology to avoid the comparison result with the accused infringer. The purpose of this operation is to avoid drawing conclusions about the validity of related patents and get a trial result that the infringement is not established. The reason is that it is not illegal to use the known technology. The author agrees with the trial results and reasons, but the court agrees. Article 45 of the Patent Law stipulates that anyone who thinks that the grant of the patent right is not in conformity with the relevant provisions of the Patent Law from the date of the grant of the patent right may request the Patent Reexamination Board to declare it invalid, and Article 64 of the Implementing Rules stipulates the reasons for the request for invalidation. Therefore, for any defective patent, the patent law stipulates the relief procedure, and the reason why the invalid procedure opposes the defective patent is not limited to novelty and creativity, nor is it bound by the one-to-one comparison principle required by the defense of known technology. It can be seen that for defective patents, the procedure of declaring patents invalid has more powerful functions than the principle of public knowledge technology defense, and should be applied first in procedure. According to the viewpoint of applying the defense principle of known technology in the same patent infringement, when the accused infringer is exactly the same as the known technology, that is, when the accused infringer is not novel compared with the known technology, or when there are some differences between the accused infringer and the known technology, but the accused infringer is not creative compared with the known technology, the conclusion that the infringement is not established will be drawn. Although the judgment of novelty is relatively simple, it can't get absolutely consistent results, while the creative judgment is relatively difficult, which needs to be judged from the perspective of ordinary technicians in this field, which is undoubtedly a technical challenge for court judges. The examiners of the Patent Reexamination Board are all technical personnel in various fields who understand the patent law and have rich experience in patent examination. They have obvious advantages in judging novelty or creativity, and there are quite a few re-examination examiners in various fields. Judging novelty or creativity is one of their daily jobs, so they have more experience. Therefore, it is more reasonable and efficient to start the invalidation procedure when using the well-known technology to defend, which is worth popularizing. When applying the defense principle of known technology, another controversial issue is whether the known technology used in the defense must be free known technology, that is, it is limited to anyone who can use the known technology that enters the public domain for free, or all known technologies. If the well-known technology is required to be free and well-known, the court must verify whether the patent has been applied for and protected in China and whether it is still a valid patent, which will undoubtedly bring a lot of burden and inconvenience to the court's work. If all known technologies can be used to defend the same infringement, perhaps the accused infringer proves that he has not infringed the plaintiff's patent right, but also indirectly proves that he has infringed the patent right of others. The same problem will also appear in the case of using known technology to defend patent infringement. However, these problems will not appear in the invalidation procedure. When judging novelty or creativity as one of the invalid reasons, we only need to consider whether the technology is known to the public. Obviously, the advantage of invalidation procedure is more convenient and uncontroversial. In China, the intermediate courts where the governments of provinces, autonomous regions and municipalities directly under the Central Government are located have the right to hear cases related to patent disputes. According to the provisions of Article 57 of the Patent Law, patent dispute cases may also be requested to be handled by the patent administrative departments of the governments of provinces, autonomous regions and municipalities directly under the Central Government and some municipal governments with districts. There are dozens of judicial organs and administrative organs in China to handle patent dispute cases, and infringement lawsuits against the same patent right also occur from time to time in many areas. When the defense principle of known technology is applied, and there are some differences between the known technology and the accused infringing object, it is necessary to judge whether the accused infringing object is creative relative to the known technology, so as to draw the conclusion whether the infringement is established. Due to technical reasons, it is inevitable that local courts or administrative organs will draw different conclusions. According to Article 45 of the Patent Law, the Patent Reexamination Board is the only institution to hear the validity of a patent. In order to meet the requirement of patent law that the request for invalidation of patent right should be heard and ruled in time, after years of construction, the number of examiners has been increasing, the examination ability has been greatly improved and the examination period has been shortened. Therefore, the request for invalidation can be heard and judged in time. For defective patents, requesting invalidation is an active and efficient way, and there will be no inconsistent results. After the invalidation procedure is completed, local judicial organs and administrative organs may not need to hear the infringement according to the result of invalidation, so as to avoid duplication of work. To sum up, the author believes that in patent infringement cases, requesting the Patent Reexamination Board to declare the patent right invalid is an effective means for the accused infringer to give priority to infringement litigation.