Study On The Application Of Duty Of Care In Determination Of Patent Infringement

The principle of liability for intellectual property infringement is a hot topic both in theory and in practice of intellectual property law in China,in which there are so many different views that there is no consensus in theory so far,and that there comes the inconsistency not only in the trial standards but also in judicial protection in practice,and that there comes an obvious conflict in legislation.Since China is working on the fourth amendment of Patent Law and on the draft of the Civil Code,China urgently needs to solve the problems of imputation principle of patent infringement liability and the identification of fault.So,this article is divided into six parts to carry out the related research.The first part is the part of "the overview of the theory of duty of care".It introduces the concept of duty of care,the theoretical basis of duty of care and its sources.It is believed that the duty of care in the determination of patent infringement is mainly a statutory obligation,and may also be derived from technical norms,contracts,common sense,career,prior behavior,etc.The research of this part lays the theoretical foundation for the following five parts about the application of duty of care in the field of patent infringement.The second part,with the study on the relationship between negligence and the duty of care,the difference between the liability for damages and the liability of stopping the infringing act,and the application scope of the fault liability principle,etc.,this part confirms the feasibility and it's significance of the application of duty of care in the determination of patent infringement liability in China.The third part studies the duty of care in the patent laws and other related laws of Japan,South Korea,the United Kingdom,the United States,Germany,France,India,Canada,and Australia,and finds that there are mainly four categories of the duty of care embodied in the patent laws of these countries.The first category is the most stringent legal obligation embodied in the French Intellectual Property Code and the Chinese Patent Law.The second category is the stringent duty of care embodied in the patent laws and other related laws of Japan,South Korea,India,the United Kingdom,Canada,and Australia.The patent laws of these countries clearly stipulate the presumption of negligence,and the alleged infringers bear the burden of proof that they are not negligent.The third category is the strict liability stipulated in the U.S.Patent Law,which assumes the liability for damages if there is a patent mark on the patented articles.The fourth category is the duty of care stipulated in the Germany Patent Law,which does not stipulate the presumption of negligence.However,relevant cases and scholars' opinions indicate that the negligence judgment in the Germany Patent Law is based on the violation of duty of care.The alleged infringer has a duty of care in anticipating the patent rights of others in the business and avoiding implementation of them.Through the comparison of the contents of the duty of care embodied in the above-mentioned patent laws of various countries with the duty of care in the Chinese Patent Law,this part also analyses the problems existing in the duty of care embodied in the Chinese Patent Law.The fourth part,through the empirical study on the application of the duty of care in patent infringement cases in China,it is found that there are problems in China's patent infringement determination such as different articles of patent law and tort liability law are applied by courts.That is,different courts apply different judicial standards.To solve these problems,this article gives legislative suggestions on the application of the duty of care to the identification of patent infringement liability in China.The fifth part,by the study on the relationship between reasonable people and duty of care,the concept of reasonable people,the changes of reasonable people's standards in the history of patent system and other issues,constructs the reasonable person standard system in Chinese patent law.In this system,the reasonable manufacturer should be the one that he knows the patent information of patented products that the patentee has marked the products with patent mark,and the patent information in other situations that the accused infringer should obviously know the existence of the patent right,and he knows the technology embodied in his products,but he does not know other patents except the above.For the patent that the infringer has already known or has been notified by the patentee,the reasonable manufacturer is in the state of knowledge of the accused patent,and he can determine whether or not his product has infringed the scope of the patent right.The reasonable distributor should know the purchase channel and know the source of the product.The reasonable person standard in the patent law lays the foundation for the establishment of the contents of the duty of care.The sixth part studies the setting of the duty of care in the Chinese patent law.From the perspective of the foreseeability of the patent infringement,the infringer's duty of care should be categorized.Manufacturer shall have the duty of care to avoid infringe the patent if the patentee has made a qualified patent mark on the product or the service.For the product without a patent mark,the accused manufacturer infringer does not have the duty of care to know the patent and to avoid patent infringement,unless there are other situations show that the accused infringer should obviously know the existence of the patent,or he actually knows the existence of the patent.The accused distributor infringer does not have the duty of care to avoid infringement of the accused product,but has the duty of care to ensure that the product has a legitimate source.From the perspective of profit and risk,manufacturers have the duty of care to avoid infringing the patents with which the accused products have been marked and other patents that are obviously could be found,and they don't have the duty of care for other patents.Distributors don't have the duty of care to avoid patent infringement.On the basis of the duty of care above,this part gives the legislative proposals for the determination of negligence in Chinese patent law.The studies above demonstrate that the liability for damages in patent infringement in China should apply the principle of fault liability,the standard of determination of negligence is the breach of the duty of care;establish the standards of the reasonable persons and the contents of the duty of care;provide theoretical basis and technical support for the application of principle of fault liability for the patent infringement in China.It has certain reference value for the fourth amendment of the Chinese Patent Law and the formulation of the Intellectual Property Right of the Civil Code.