抵触申请抗辩及其制度完善

The Justification of Conflicting Application Defense and its Reform

被诉侵权技术方案相对于抵触申请不具有新颖性,或者明显不具有创造性的,应当认定抵触申请抗辩成立。专利法第四次修改中,应当在其中对抵触申请的概念以及抵触申请抗辩作出规定。在专利审查指南中,应当相应规定明显不具有创造性的具体情形。

If an alleged infringing technical solution has no novelty over, or is highly obvious comparedwith a conflicting application, the defender’s conflicting application defense should prevail. We stronglyrecommend that during the ongoing fourth patent amendment process, it is critical important to incorporateprovisions stipulating the conflicting application as well as conflicting application defense. Thereafter, a provisionshould be introduced to the Patent Examination Guideline accordingly, enumerating the situations wherein apatent is highly obvious compared to a conflicting application.