The Study On The System Of Indirect Infringement Of Patent

The system of indirect infringement originated from the 1871 case of Wallace v. Holmes in US. After more than a century, it has been used in many countries like England, France, Japan and so on. Although revised for three times, the indirect infringement has not been involved in our patent law, which was considered as a pity in the revision of patent law. With the rapid development of our national economy, the indirect infringement behavior in the case of trial practice become more and more covert, complexity and diversity. There have been many indirect infringement behaviors through the manufacture and sale of the components of patented products that harmed the patent. Since the theoretical research of indirect infringement has been a long time in our country, many sophists appeal that this system should be brought into the patent law. With the continuously emerging phenomena of indirect infringement, many courts have attempted to adjudicate the case according to the theory of indirect infringement, in order to fairly protect the patent owner. However, the lack of unified standards of indirect infringement system in our patent law often results in the undefined basis for trial and confusion for trial adjudication.From the standard statistical analysis of constitutive requirements used in our court for the identification of indirect infringement, this dissertation indicates that there is no unified standards in the trial practice in our country due to the lack of related legislation. The adjudication by different theoretical views could result in the juridical confusion, thus this dissertation reveals the importance of the system construction of indirect infringement in our country. On that basis, we focus on the discussion of key issue about the system construction of indirect infringement, namely the selection of constitutive requirements.Combining the theory and trial practice, this dissertation focuses on the study of the construction of indirect infringement in our country, which is divided into three parts.The first part presents the concept of indirect infringement of patent. From the origin and the development of the system of indirect infringement, we illuminate the meaning of indirect infringement, the different definitions between theory and legislation, and the connotation of indirect infringement. The indirect infringement investigated in this dissertation was defined as "the behavior with direct infringement caused by providing or promising to provide the 'special-purpose components' that is especially adapted for use in a patented invention to others with the purposes of business, which is unknown to the related common technical personnel before publication of the patent, and the 'special article' that existed before the publication of the patent, which had specific purpose in the invention that not predicted by the related common technical personnel"The second part introduces the system of indirect infringement of patent in all countries, including the legislation contents and development history. On that basis, we compare the legislation characteristics and difference between them, indicating that the system of indirect infringement in American patent law is of maturity. We also described the characteristics of objective behavior and behavior mode in the system of indirect infringement in Japan, Korea and so on. The obtained results could provide legislation reference to our country.The third part is the main part of this dissertation, which discusses the construction of the system of indirect infringement. Comparing the legislation contents in all countries, we analyze the difference in theoretical perspective in our country and the existing problem in trial practice. Then, we clarify the five requirements of indirect infringement in our country with respective study and discussion, including subject behavior, behavior mode, objective behavior, subjective element and harmful consequences. On that basis, we proposed our own points as follows:the objective behavior of indirect infringement should be defined as "the 'special-purpose components' that is especially adapted for use in a patented invention to others with the purposes of business, which is unknown to the related common technical personnel before publication of the patent, and the 'special article' that existed before the publication of the patent, which had specific purpose in the invention that not predicted by the related common technical personnel". Meanwhile, we insisted that the precondition of the definition or to bear the duty of indirect infringement behavior should be the establishment and practical existence of direct infringement behavior. Moreover, the behavior mode of indirect infringement was defined as 'provide or promise to provide', and limited in the purposes of business. Finally, the subjective item for the establishment of indirect infringement should be 'deliberately', and the adjudication of subjective fault was distinguished into 'special-purpose components' and 'special article' with the fault presumption and fault regulation, respectively.