为先用权正名

In Defense of Prior User Rights

先用权的权原来自于先用人的权利。先用权是为了维护专利申请制度的正常运转与保护专利权人的利益而对先用人的权利进行限制的结果。先用权的权利性质不应因为其效力受到限制而改变。先用权是一项独立的建基于自然法基础上的实体权利。从伦理上看,先用权比专利权更具有道德上的正当性。又考虑到先用人在专利侵权诉讼中所承担的较重的举证责任,对先用权的成立条件不应过于严格。先用权的先用行为应当包括实施专利的所有行为类型。限制先用权效力的原有范围应解释为原有的行为类型与原有的技术范围。

Prior user rights result from prior userg rights. The system of Prior user rights is imposed restrictions on prior userg rights in order to preserve our curent patent system and protect patentees＇rights. Although it can counterplcad patentee＇s plea, it is not only a right to defense but an independent substantive right. The nature of prior user rights can not be changed because its validity is limited certain extent. In fact, prior user rights have more moral legitimacy than patent. Moreover, prior users usually bear heavier burden of proof. Therefore, establishing conditions of prior user rights should not be unduly stictly required. To mplement in the former scope is the main limitation of the validity of prior user rights. The ＂former scope＂ shall not be construed as former production capacity, but shall be construed as former types of exploiting and former technological scope.