What are the conditions for the establishment of patent preemption?

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.

The key to the correct application of the right of first use in patent infringement litigation is to grasp the conditions for the establishment of the right of first use: ① Time conditions: the prior use behavior must have made necessary preparations for the same product, the same method or the manufacture and use before the patent application date or priority date. (2) Conditions of independence: The invention-creation used by the first user must be independently completed or legally obtained, which has nothing to do with the patentee, and the invention-creation obtained by illegal means cannot be given priority. (3) Availability conditions: The first user must have at least made the necessary preparations for manufacturing or using before the patent application date of others. (4) Conditions of scope of use: The manufacture or use of prior rights is limited to the original scope, and the scope of use may not be expanded. The academic views on what is the "original scope" are still not unified, and the legislation is not clear. This issue is stipulated in Article 47 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Patent Infringement Disputes (Conference Discussion Draft) from June 5, 2003 to 10.