The right of prior use, also known as the right of prior use, refers to the right to manufacture and use the same product before the patent application date. If the same method is used or the necessary preparations for manufacture and use have been made, and the manufacture and use continue within the original scope, the perpetrator shall have the legal right to implement the patented product or patented method. The right of prior use is found in Article 63 of my country’s Patent Law. Article 63 of my country’s Patent Law stipulates that any of the following circumstances will not be regarded as infringement of patent rights: (2) The same product has been manufactured and the same method has been manufactured before the patent application date, or the necessary preparations for manufacturing and use have been made Prepare, and continue to manufacture and use only within the original scope;...
1. Nature of the prior use right
As we all know, most countries that currently implement patent systems implement a first-to-file system, and our country is no exception. Article 9 of my country’s Patent Law stipulates a first-to-file system. Article 9 of the Patent Law stipulates: “If two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the person who applies first.” For the same invention-creation, the patent is only granted to the person who files the first application for the same invention-creation. The person who files an application within the meaning of the Patent Law. In fact, under the first-to-file system, the first person to file a patent application with the State Intellectual Property Office is not necessarily the first person to make an invention, nor is it necessarily the first person to implement the invention. In addition, applying for a patent is a way for the inventor to protect the achievements of his inventions and creations in exchange for the monopoly rights for a certain period of time at the cost of disclosing his technology. However, the means of protecting the achievements of inventions and creations is not just applying for a patent. kind. Due to the need for commercial competition, some inventors may use other methods (such as trade secrets) to protect their inventions.
Therefore, when the patent applicant files a patent application, others may have already made the same invention, manufactured the same product or been using the same method, or considerable human, material and financial resources have been invested in manufacturing the product or implementing the method. Obviously, if the prior inventor has independently made an invention that does not violate the prohibitive provisions of the law, the inventor shall enjoy the right to independently implement the invention. In other words, the inventor shall have the right to independently implement the invention. The right to implement an invention-creation shall not be terminated by the patent right obtained by the inventor who subsequently made the invention. Patent rights, as rights acquired later, cannot damage the rights that have been legally acquired by others before that time. In this regard, our country’s Constitution and the General Principles of Civil Law have clear provisions. Our country's constitution stipulates: "When citizens of the People's Republic of China exercise their freedoms and rights, they may not harm the interests of the state, society, or the collective, or the freedoms and rights of other citizens." The "General Principles of Civil Law" stipulates: "The legal rights of citizens and legal persons are protected by law. , no organization or individual may infringe." Therefore, we can understand that the actual legal source of the prior use right does not come from Article 63 of the Patent Law. On the contrary, my country's Patent Law is based on the Constitution and the General Principles of Civil Law. The spirit and provisions of the law limit patent rights to prior use rights.
2. Reasonable exercise of prior right of use
Prior The exercise of the right of use will obviously lead to a conflict of interest between the holder of the prior Right to use and the patentee: if the right of prior use is restricted too much, the holder of the prior right to use will not be able to obtain the legal rights that he should enjoy, which will be detrimental to the It is unfair to the holder of the prior right to use. On the contrary, if the rights of the holder of the prior right to use are too large or unrestricted, it will seriously damage the patent system and even render the patent system useless. Therefore, the law needs to balance the two rights and determine the reasonable scale for the prior user right to exercise the prior use right. Article 63 of the Patent Law stipulates that the scope of the prior use right holder's reasonable exercise of his prior use right is limited to the "original scope". As for the understanding of "original scope", most domestic scholars currently determine it in a fixed-point quantitative manner, that is, using the patent application date as the dividing point, the actual production of special equipment that has made the necessary preparations for manufacturing and use before that date Range of quantities and production capabilities. The Beijing Higher People's Court's "Opinions on Several Issues in the Determination of Patent Infringement (Trial)" stipulates that the original scope refers to the actual production output or production capacity range of the special production equipment prepared before the date of patent application.
However, whether this definition is reasonable is questionable. As mentioned above, the prior right to use is obtained based on the invention and creation made by the holder of the prior right to use legal means. This right is an independent right, and the subsequent patent right should not be able to reasonably exercise the prior right. constitute restrictions. The criterion for judging whether it is reasonable or not should be to see whether the prior right is suspected of free riding due to the existence of the later patent right. If so, it is an abuse of the prior right to use, otherwise it should be deemed to be a reasonable use of the prior right to use. .
So, does the expansion of the scale of production by the prior user right holder according to production needs fall within the scope of reasonable use? From the perspective of the general rules of the market economy, prior use rights When a new technology is just developed, the market prospects are generally not clear. The prior user rights holder will be more cautious in doing some experimental work and generally will not carry out large-scale production. Instead, they will wait until the product is launched on the market and has gained consumer acceptance. Only when it is recognized that the prior user right holder predicts a relatively optimistic market prospect, will it be based on market needs andThe company's production requires the purchase of large quantities of required production equipment and expansion of production scale. If all actions to expand production scale after the patent application date are regarded as unreasonable use of the prior use right without analysis, it will undoubtedly require the prior use right holder to foresee when making an invention and starting to market it. It is obviously unrealistic to determine the production scale based on the market prospects in the next few years. What's more, market behavior is often a long-term process. In addition to factors such as market prospects, the production scale of the prior user right holder is also unrealistic. It may also be affected by other factors such as funding and is unlikely to be large-scale in the early stage. Therefore, the prior use right holder’s reasonable expansion of production scale according to the needs of its production scale should be considered as a reasonable use of its prior use right.
