中药复方专利侵权诉讼中公知技术抗辩研究——兼评“天士力诉万成侵犯专利权”案

Defense of Publicly Known Technique in the Action of Infringement of Chinese Herbal Compound Patent:In the Perspective of a Case Study

公知技术抗辩是专利侵权诉讼中被告保护自己利益的有效手段。用以抗辩的公知技术是指专利申请日之前已有的、处于公知状态的技术,但不必是可自由使用的技术。公知技术抗辩是否成立的判断应采用"二者比较创造说"。在既符合等同侵权又存在公知技术抗辩的情况下,应当优先适用公知技术抗辩。

Publicly known technique is a defense often offered by the defendant to protect his/her interest in a patent infringement action. The publicly known technique used as a defense refers to the technique that has, prior to the application of the relevant patent, existed and is in a position that the public can get access to but may not necessarily be used freely. Whether the defense is erected is decided in accordance with the doctrine of ＂comparison of the creations of the two. ＂ Where the case is similar to that of a tort and the defense of publicly known technique is available, conducting the defense of publicly known technique should take priority.