Research On The System Of Indirect Patent Infringement

The patent indirect infringement system is one of the important systems of patent law.From a global perspective,most countries with relatively perfect intellectual property systems have established relatively mature patent indirect infringement systems,and China's patent indirect infringement system is still in its infancy.As far as legislation is concerned,the construction of the patent indirect infringement system has been put on the agenda.In December 2015,the Legislative Affairs Office of the State Council publicly solicited opinions on the "Revised Draft Patent Law(Draft for Review)".Article 62 of the "Draft for Review" clearly stipulates the blame,liability and responsibility of patent indirect infringement.In March 2016,the Supreme People's Court issued the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Infringement of Patent Rights(?).According to the provisions of Article 21 of the Interpretation,the identification of patent indirect infringement can directly invoke the clause.As far as theoretical research is concerned,the patent indirect infringement system has become one of the research hotspots of patent law,which has caused extensive discussion in the academic circle.The basic problems of patent indirect infringement,the relationship between direct infringement and indirect infringement,the constituent elements of patent indirect infringement,the causal relationship between patent indrect infringement and the consequences of damage have rich research results.In judicial practice,due to the lack of legislation,the judicial referee standards for patent indirect infringement cases are not uniform,which has led to more theoretical and practical problems.How to clarify the difference between patent indirect infringement and direct infringement and joint infringement,and construct a patent indirect infringement system in line with China's national conditions is of great research significance.From the historical development of the patent indirect infringement system,it originated from the Wallace v.Holmes case of the United States in 1871.The case established a rule that if someone makes or sells special products without the permission of the patentee.It will be considered a patent infringement.After more than half a century of development,the United States revised the Patent Law in 1952 and officially wrote it into the legislation,and established a dual indirect infringement structure of"indirect infringement of instigating patents" and "indirect infringement of auxiliary patents".Subsequently,Germany,France,Iceland,Finland,Norway,Japan,South Korea,the European Union and other countries have also added legal provisions for patent indirect infringement in their patent laws.China's theoretical research on patent indirect infringement system has been rich,and some research results are also reflected in current legislative documents or normative documents.Although China's "Patent Law" does not clearly stipulate the meaning of patent indirect infringement,different scholars have different definitions,but it is clear that patent indirect infringement is completely different from patent direct infringement and patent joint infringement.There is a close relationship between the three,but they cannot be covered by each other.Patent indirect infringement exists independently of the direct infringement of patents.In the constituent elements of patent indirect infringement,it should be clear that the subjective must be intentional,and the objective should be the product related to the substantive characteristics of the patented invention.The patent indirect infringement system has its strong theoretical foundation.First,the jurisprudential interpretation of the patent indirect infringement system.The original intention of the patent indirect infringement system was to protect the exclusive rights of the patentee.Because there are many potential method inventions or product inventions that can be produced according to the laws of nature in a society.It is a premise that a patentee has ownership of his own person.The creative work of the patentee is of course his own.It is the patentee's creative labor that has unearthed its results from the public domain.After the procedures of the relevant state organs,the patentee has obtained an exclusive patent right.Of course,after obtaining a patent,the patentee left enough good and the same amount of things for others.After all,the patentee put a larger part into the public domain and then put a larger part into it.In the public domain.The state grants a person a patent right after all,for the purpose of saving resources and improving efficiency.Therefore,this person acquires property ownership so as net to cause waste.Second,the legal economics interpretation of patent indirect infringement.The operating mechanism of the intellectual property incentive theory is generally such that the state grants a certain amount of time and a certain space to legal monopoly rights through patents.It is a necessary stimulus,which is very necessary to encourage the invention and creation activities of the inventors.At the same time,having the property rights granted by the state to the ultimate result of invention and creation by the inventor can also encourage the invention and creation activists to disclose their inventions to the society as soon as possible,thereby reducing duplication of development and social resources.Savings are also a necessary means.It can be said that the patent law is an equitable mechanism for publicizing "consideration" of technical solutions.The ultimate goal of this system design is to encourage more inventors to contribute their talents to advanced technologies that are more helpful to society as a whole,and to let the public know about these inventions as soon as possible through an open approach to their invention.The content,and can make these technologies enter the common field after a certain period of time,so that the public can use it freely.Finally,the civil law thinking of the patent indirect infringement system.Patent indirect infringement is an infringement.This is a basic characterization of patent indirect infringement.The source of patent indirect infringement is the patent common infringement theory.Whether in various legal documents or in judicial practice,joint patent infringement plays an important role in patent indirect infringement.Patent indirect infringement made a modest breakthrough in the common infringement rules.The infringement is the act of infringing on the protected civil rights of others,and shall bear the tort liability according to law.From the perspective of comparative law,in the construction of the patent indirect infringement system,the United States,the European Union,Germany,Japan,and Taiwan of China all stipulate that the subjective fault of the patent indirect infringer must be intentional,and the object of the indirect infringement must be specific.The product.However,in the legislative model of patent indirect infringement and the relationship between patent indirect infringement and direct infringement,countries vary.As far as the patent indirect infringement legislation model is concerned,both the German Patent Law and the US Patent Law adopt a dual legislative model,which specifies the types of indirect infringements of "assisted infringement" and "inducing infringement".The"Japanese Patent Law" adopts the one-yuan legislative model,which only stipulates the type of "helping infringement" and incorporates "inducing infringement" into the scope of "common infringement".In Taiwan,China has incorporated patent indirect infringement into the scope of "co-infringement" regulations.As far as the relationship between patent indirect infringement and direct infringement is concerned,the US Patent Law stipulates that the establishment of patent indirect infringement needs to be based on the existence of patent direct infringement;the Japanese Patent Law considers that the establishment of patent indirect infringement does not require patents.The existence of direct infringement is a prerequisite.The judicial practice of the German Patent Law also does not link patent indirect infringement with direct patent infringement.China's current legal regulation of patent indirect infringement mainly adopts Articles 176 to 178 of the General Principles of Civil Law;Article 148 of the "Opinions of the People's Republic of China";Articles 8 to 12 of the Tort Liability Law;Articles 73 to 80 of the Court's Opinions;the normative documents of Article 21 of the Interpretation of Patent Disputes(?)are stipulated.At the same time,the cases of indirect infringement of patents in judicial practice may also be classified as "helpful".There are two types of infringements of patent indirect infringement and indirect infringement of instigating patents.However,these normative legal documents and judicial rules are not sufficient to fully protect the interests of patent holders.There are also many problems in legal provisions and judicial practice:First,patent indirect infringement is not a statutory concept.The existing concept of "indirect patent infringement" is only a theoretical summary of scholars.Formal legislative documents and judicial interpretations do not have this concept.Second,the rules for indirect infringement of patents are not specified in China's legislative documents.Among the existing documents for adjusting patent indirect infringement disputes,the highest legal level is Article 21 of the Interpretation of Patent Disputes(?).Third,the "common infringement rules" cannot be fully applied to the "indirect infringement of patents" dispute.Fourth,the scope of indirect infringement of patents in China is too large.Fifth,some judicial cases recognize the possibility of extraterritorial application of patent indirect infringement rules.The patent indirect infringement system has great value.On the one hand,the patent indirect infringement system can make up for the shortcomings of the direct infringement system and fully protect the legitimate rights and interests of the patentee.On the other hand,the patent indirect infringement system takes into account the interests of different parties.Reasonably balance the interests between patent protection and the public.From the current legislative situation of major countries in the world,the construction of patent indirect infringement system is an inevitable trend of social economic development and patent protection.The current frequent judicial disputes in China also reflect the objective need to construct a patent indirect infringement system.As far as the specif:system construction is concerned,it is roughly divided into the following points:First,the concept of patent indirect infringement is clarified.Second,China's patent law should only provide for indirect infringement.This paper believes that helping infringement is more in line with the indirect infringement of patents in the mainstream context,and only adopting the one-legal legislative model to help infringement is more reasonable and urgent.Third,China's patent law should not stipulate that patent indirect infringement has extraterritorial effect.Fourth,regarding the improvement of the network indirect infringement rules in the Internet space,the "necessary measures" are not clear enough and the "notification-delete" rules are not perfect.This article believes that efforts can be made to:express other necessary measures in addition to necessary measures such as deleting,blocking,and disconnecting infringing product links;improve the"notice-delete" rule.