Prior use right in patent right restriction

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.

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".

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.

Problems that should be paid attention to when exercising the priority of use include

(1) The technology used by the prior obligee shall be independently researched by the prior obligee 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.