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The right of prior use, also known as the right of prior use, refers to making the same product, using the same method or making necessary preparations for making and using it before the patent application date, and continuing to make and use it within the original scope, and the actor enjoys the legal right to implement the patented product or patented method. The prior right of use can be found in Article 63 of China's Patent Law. Article 63 of China's Patent Law stipulates that any of the following circumstances shall not be regarded as patent infringement.
First, the nature of prior right to use
As we all know, at present, most countries that implement the patent system implement the first-time application system, and China is no exception. Article 9 of China's patent law stipulates the first application system. Article 9 of the Patent Law stipulates: "Where two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the first applicant." For the same invention-creation, in the sense of patent law, the patent is only granted to the person who first applied to China National Intellectual Property Administration. In fact, under the prior application system, the first person to file a patent application to China National Intellectual Property Administration is not necessarily the first person to make an invention, nor is it necessarily the first person to implement an invention. In addition, applying for patent right is a way for inventors to realize the protection of their inventions at the expense of disclosing their technology in exchange for monopoly rights for a certain period of time. However, the means to protect his inventions is not just to apply for patents. For the need of commercial competition, some inventors may use other means (such as trade secrets) to protect their inventions and creations. Therefore, when the patent applicant files a patent application, others may have made the same invention, manufactured the same product or used the same method, or invested considerable manpower, material resources and financial resources to manufacture the product or implement the method. Obviously, if the inventor of a prior invention independently made an invention that did not violate the prohibition provisions of the law, the inventor of the invention should enjoy the right to independently exploit the invention. In other words, the creator's right to exploit his invention should not be terminated because the creator of the latter invention obtains the patent right. The rights acquired after the patent right is taken shall not harm the rights that others have legally acquired before. In this regard, China's constitution and the general principles of civil law have clear provisions. The Constitution of China stipulates: "The people of China and the citizens of China shall not harm the national, social and collective interests or the freedoms and rights of other citizens when exercising their own freedoms and rights." The General Principles of the Civil Law stipulates: "The lawful rights of citizens and legal persons are protected by law, and no organization or individual may infringe upon them." Therefore, we can understand that the legal source of prior use right does not come from Article 63 of the Patent Law. On the contrary, China's patent law is based on the legal spirit and provisions of the Constitution and the General Principles of Civil Law, and restricts the patent right with the right of prior use.
Second, the rational exercise of the priority of use.
The exercise of the prior right to use will obviously lead to the conflict of interest between the prior right to use and the patentee: if there are too many restrictions on the prior right to use, the prior right to use will not get its legal rights, which is unfair to the prior right to use. On the other hand, if the prior right of use is too large or unrestricted, it will seriously damage the patent system, and even lead to the patent system in name only. Therefore, the law needs to balance the rights of the two and determine the reasonable scale for the prior user to exercise the prior right to use. Article 63 of the Patent Law stipulates that the scope for the prior obligee to reasonably exercise his prior right to use shall be limited to the "original scope". At present, the understanding of "original scope" is mostly determined by domestic scholars in a fixed-point and quantitative way, that is, the actual production quantity and production capacity range of special equipment that has made necessary preparations for manufacture and use before the patent application date are the dividing point. The Opinions of Beijing Higher People's Court on Several Issues Concerning the Determination of Patent Infringement (Trial) stipulates that the original scope refers to the actual production output or production capacity of special production equipment prepared before the patent application. [1] However, whether this definition is reasonable is debatable. As mentioned above, the prior right of the prior user is the right to make an invention and creation through legal means, which is an independent right, and the subsequent patent right should not restrict the reasonable exercise of the prior right. The criterion to judge whether it is reasonable should be whether the prior right is suspected of hitchhiking because of the existence of the later patent right. If it is, it is an abuse of prior use right, otherwise it should be regarded as a reasonable use of prior use right. Then, does it belong to the reasonable scope of use for the first user to expand the production scale according to the production needs? Judging from the general law of market economy, the market prospect of first-time users is generally unclear when they just develop a new technology. First-time users will carefully try some works, and generally will not mass-produce. When the products are put on the market and recognized by consumers, and the users predict that the market prospect is good for the first time, they will purchase a large number of required production equipment according to the market needs and the production needs of the company to expand the production scale. It is obviously unrealistic to regard all acts of expanding production scale after patent application as unreasonable use of prior right of use without analysis, which undoubtedly requires prior right of use to predict the market prospect in the next few years and determine the production scale accordingly when making inventions and starting marketization. What's more, market behavior is often a long process. Besides the market prospect and other factors, the production scale of priority use right may also be affected by other factors such as funds, so it is unlikely to be large-scale in the early stage. Therefore, the reasonable expansion of the production scale by the prior obligee according to the needs of its production scale should be regarded as the reasonable use of its prior right to use. [2]
Three, the exercise of prior use rights should pay attention to the problem
When exercising the right of priority, we should pay attention to the following questions: 1. The technology used by the prior right to use should be independently studied by the prior right to use or obtained by legal means, not by plagiarism, plagiarism or other improper means before the patent application date. 2. The right subject of prior use right is limited to the product manufacturer. Prior right of use does not apply to users and sellers. 3. The prior right to use is only exercised by the prior obligee himself, and may not be used for shares or transfer, except that the prior right to use is transferred with the enterprise.