Research On Indirect Patent Infringement

The determination of patent infringement follows the “full coverage principle”,that is,the technical solution accused of infringement can be infringed only if it contains all the technical features recorded in the claims.According to this,the scope of patent protection is strictly limited.However,in practice,with the emergence of a large number of indirect patent infringements,the traditional patent infringement system has been unable to meet the needs of the rights holders to protect their interests.A new structural arrangement of practical issues must be carried out at the institutional level,so as to balance the patentees and the public interests of society.Under the new situation of “strengthening the protection of intellectual property rights,stimulating the vitality of innovation,and promoting the construction of a new development pattern”,the indirect patent infringement system provides strong support for remedying the inherent logical defects of the concept of intellectual property infringement and strengthening the protection of intellectual property rights.Based on the changes in the institutional environment brought about by informatization,this paper conducts a structural analysis of indirect patent infringements,with a view to resolving the value conflict between innovation incentives and technology applications through scientific system design.This article focuses on the structural analysis of indirect patent infringement.The full text contains six chapters,in addition to the introduction and conclusion.The first chapter discusses the concept and evolution of indirect patent infringement.This chapter first analyzes the concept and characteristics of indirect patent infringement.Patent indirect behavior means that the actor himself has no patent enforcement behavior,but provides convenience for the actor who directly enforces the patent right through inducements and assistance.Indirect patent infringement is divided into contributory infringement and induced infringement.Secondly,from the perspective of comparative law,it sorts out the system change process of indirect patent infringement.Based on time clues,I sorted out the US system response to indirect patent infringement.The indirect infringement system took shape in the Wallace et al.v.Holmes et al.case.Afterwards,after experiencing the tortuous development of the antitrust law and the principle of prohibiting the abuse of rights,the United States finally established a patent indirect infringement system with assistance in infringement and inducing infringement as the main type.Clarifying the concept of the system and making a historical analysis of the development of the system are the basis of theoretical research.Finally,this chapter sorts out the theoretical and legislative exploration of indirect patent infringement in our country.The spiral legislative exploration process,which has been repeatedly denied but is actually working,shows the current status of our country’s current system of “indirect patent infringement,without the name of indirect patent infringement”.The second chapter analyzes the legitimacy of indirect patent infringement from the perspective of law and economics.This chapter analyzes indirect patent infringement from three different perspectives: rent dissipation theory,Camerian framework and utilitarianism.The first section discusses the relationship between the definition of rights and the allocation of resources,and analyzes the scope of patent rights using the theory of rent dissipation.The discount of the economic benefits that the patented technology may generate in the future can be regarded as a kind of rental value.When the definition of property rights is unclear,the innovation interests flowing to the public domain will become the object of contention,thereby accelerating the process of dissipating the rent of technological information.At this time,extending the scope of patent protection can prevent patent rents from dissipating and avoid the risk of “patent rent-seeking”,so the indirect patent infringement system is legitimate.The second section uses the Kamer framework as an analysis tool.The Camerian framework is another paradigm for the study of tort relief rules in the field of law and economics.This theory seeks to achieve the ultimate goal of rights relief with "minimum cost consumption".According to the classification of the Camerian framework,the indirect patent infringement rules are closer to the property rules,which can prevent patent infringement and promote the conclusion of transaction contracts between right holders and industrial products companies.The indirect patent infringement rules under the property rules and the joint infringement rules under the liability rules constitute a “dual complementarity model”,through which full relief to the right holder can be realized.The third section uses utilitarianism as an analysis tool.From this perspective,the ultimate goal of the patent system is not only technological progress,but also economic progress.Therefore,the protection of innovation interests cannot ignore the incentive effect of the commercialization of new technologies.The “firework mechanism” proposed by Mokyr shows that the creation of new technologies does not rely on the intuition of inventors,but is the result of chemical reactions that occur together in countless small inventions.Therefore,incentive theory cannot be limited to incentives for invention,but also requires incentives for contracts between inventors.The lack of an indirect patent infringement system will make it difficult to reach contracts in the primary market and industrial product companies controlled by the patentee in the secondary market.Extending the scope of patent protection to “special products” is the key to achieving the incentive effect.The third chapter focuses on the academic disputes in the development of the theory of indirect patent infringement.The actual needs of the indirect patent infringement system cannot conceal the theoretical dilemma faced by the establishment of the system.From the basic principle of infringement,the manifestation of indirect patent infringement is similar to the infringement of most people.The combination of indirect infringement of patent and direct infringement,or the combination of indirect infringement of multiple patents will result in more than two infringing subjects.As far as the subjective status of each infringing subject is concerned,there are two situations where there is no intentional contact.Therefore,there has been a view of dealing with indirect patent infringement by means of the theory of joint infringement and the theory of infringement by the majority infringing contact.In terms of theoretical relevance,indirect infringement can be described as a system that was conceived in traditional civil law but carried forward under the intellectual property system.Therefore,it is inevitable that there are theoretical disputes that are difficult to clarify with the common infringement system.It is undeniable that the theory of joint infringement provides an institutional basis for indirect patent infringement,but indirect patent infringement is not a special case of joint infringement.In our country’s “Civil Code”,joint infringement reflects the essential characteristics of “common relevance” in terms of constitutive elements and liability.However,the subjective expression of the intention of the actor,the specificity of the object objectively,and the independent form of liability undertaking have made indirect patent infringement clearly distinguished from joint infringement.Throughout the process of establishing the rules of indirect patent infringement,the transition from joint patent infringement to indirect patent infringement has become a trend.Solving indirect patent infringement disputes by unintentionally contacting several people for infringement is also academically contradictory.Although the infringement by contacting several persons without meaning can avoid the problem of “common relevance” between joint infringers,it still cannot break through the dilemma between indirect patent infringement and direct infringement.Analyzing from the essence,indirect patent infringement and majority infringement are formed under different legal rules under different systems.The infringement rule of unintentionally contacting the majority cannot provide an operable judgment standard for the special constituent elements of indirect patent infringement.In this way,indirect patent infringement must be directly coordinated with the theory of direct infringement,which also directly leads to another difficulty in the indirect patent infringement system: whether the establishment of indirect patent infringement needs to be established on the premise of the establishment of direct patent infringement.In theory,there have always been two diametrically opposed views of independence and subordination.Different viewpoints show their different presuppositions on the function of the direct infringement system.This part analyzes the value measurement displayed by different theories,and finally puts forward the“independence theory” with subjective elements based on the interests of the patentee as a logical starting point,and finally proves that the patent indirect infringement system has independent value.After clarifying the academic disputes of indirect patent infringement,the third section of this chapter analyzes the reasons for constructing the rules of indirect patent infringement.Our country’s academic circles’ concerns about the indirect patent infringement system mainly include non-compliance with the minimum standards of the TRIPS Agreement,influence on the development of our country’s traditional industries,and violation of our country’s legal traditions.This section demonstrates the necessity of establishing indirect patent infringement from the aspects of the law’s own responsive characteristics and the significant institutional value of indirect patent infringement.The fourth chapter summarizes the constituent elements and defenses of indirect patent infringement.The constitutive elements of infringement are the conditions that the law stipulates whether a certain act is infringing and thus infringing liability.The content of the constituent elements and the ultimate influence of each element on the assumption of liability determine the characteristics of the infringement rules.The constituent elements of indirect patent infringement should include: article elements,and subjective elements.In terms of items,the only purpose of the items provided by the actor is to enforce patents,and to exclude general items in the circulation field.In terms of subjective elements,determine the subjective“knowing” and “should know” standards of the indirect patent actor.In the indirect patent infringement,the actor not only “knows” or “should be aware” of the existence of the patent,but also knows that the act promoted infringes the patent right.This standard can evade the dilemma that the standard is vague due to the conjecture of the perpetrator’s mental state only.The perpetrator’s subjective “knowledge” is “for the purpose of production and operation”,and the act of providing others with the “for the purpose of production and operation” will ultimately infringe the patent right of the right holder and damage his interests.The theory of liability defense is an indispensable basis for maintaining a balance of interests between the victim and the perpetrator.Because the indirect patent infringement system is relatively independent,it does not take the actual occurrence of direct infringement as a prerequisite,which is equivalent to expanding the scope of patent protection.In order to avoid the possible imbalance of interests in practice,an independent defense should be set up for it.Specifically,it includes the defense of exhaustion of rights and the defense of abuse of rights.By determining the constituent elements and defenses of indirect patent infringement,a set of infringement rules that take into account the interests of the patent owner and the public can be established.The fifth chapter discusses the new problems faced by indirect patent infringement under the network environment.The patent law based on private rights has encountered huge challenges in the open network environment.The indirect patent infringement behavior that occurs in the network environment is different from the indirect patent infringement behavior in the traditional environment.It has a negative polarity and appears as an infringement method of inaction.The rise of the Internet has changed market supply and demand and market patterns,and at the same time gave birth to a third party that provides transaction channels-network service providers.Network service providers are not only providers of tools for social interaction on the Internet,but also the initiators or continuations of specific dangers.Network service providers should bear a certain obligation of communication security,and the violation of this obligation constitutes the legitimate basis for their liability for indirect patent infringement.Only by delimiting the scope of responsibility of network service providers based on the obligation of communication security can a balance between the legal values of justice,freedom,order,security,and efficiency be achieved.Secondly,in the interpretation path of indirect patent infringement by network service providers,indirect patent infringement is different from previous joint infringements and does not include alternative liability.Finally,what is displayed on the network platform is not a patented product but product information in the form of code,which makes it more difficult to judge the infringement with a high degree of professionalism.The sixth chapter proposes the design concept of indirect patent infringement rules.The liability for indirect patent infringement extends the scope of patent protection and breaks the boundary limitation of the overall protection of patented technology.Patent indirect acts have experienced a spiral development process in my country and have been favored by legislators many times,but they still face the dilemma of being shelved.This chapter takes the areas where indirect patent infringements occur as the criteria for dividing the system design: in the traditional environment,indirect patent infringement is mainly manifested as active actions,and in the network environment,it also includes indirect patent infringements of passive inaction.The design of rules for indirect infringement of patents in my country should adopt the “monary legislative model”,which stipulates both patent assistance and infringement induction in the patent law.Limit the boundaries of indirect patent infringement through the requirements of the actor’s subjective knowledge and the requirements of the items in which the technical elements participate.In the design of indirect infringement rules for network service providers,the specific determination criteria for notification-deletion should be detailed.Taking into account the professional nature of patent infringement judgments,the obligation of network service providers to review indirect patent infringements should be appropriately reduced.Meantime,it proposes to introduce the improvement of physical measures such as the introduction of a margin system and emphasis on the platform’s own dispute resolution mechanism.