Research On Indirect Infringement Of Patent Right

Because the patent right owner has relatively weak control over the patent right due to the immateriality of it. Patent right owners can only protect their legal rights by reference to patent law, when infringement arises, so in order to enhance their legal interests, the patent law is required to clear the rules which test the acts of patent right infringement.As we all know, the regulation on direct infringement which is an important part of patent law is a substantial means to protect patent right owners. By contrast, indirect infringement is another significant way to relieve patent right owners. The object of indirect infringement system protection points to non-patent products beyond the description of rights requirement certificate and instruction book, prone to patent rights monopoly in the absence of due care. No provisions in this respect, therefore, have been available in China's patent law. In practice, however, cases of this type reoccur. Thus, it becomes imperative to carry out comprehensive study on indirect infringement. Considering its unique juristic value, it seems both perceivable and appropriate to employ legal economic structure mode in the analysis of this system.Indirect, independent, concealed, and multi-faceted, indirect infringement differs substantially from the concept of collective infringement, partial infringement or alterative infringement, whether in connotation or denotation. Concurrent infringem- ent is featured by its independence, thus the determining of indirect infringement entails the prerequisite of direct implementation of patented technology other than direct infringement practice.The liability constituent components of indirect infringement are five-fold: The performer is the profiting entity, the performer is willful, there is a causal relation between the violating acts and disastrous results. The causal relation there in should be determined by relative causal relation. Indirect infringement acts should be defined as"provide","sell", etc. The action target and patented technology should correlate to due extent. Efforts should be made to strike a balance between the protection of rights and patent monopoly. The fault principle should be employed in liability attribution with the burden of proof borne by the rights holder.