Study On Patent Indirect Infringement

It has been more than twenty years since the Patent Law came into enforcement in China. The Patent Law has played an important role in protecting the patent holder's benefits,encouraging innovation and promoting the development of economic and social. After three amendments, the Patent Law has becoming more and more perfect. However, the indirect infringement still hasn't been ruled in the Patent Law. Because the Patent Law doesn't stipulate the patent indirect infringement, so the court lacks direct apply in dealing with the cases of indirect infringement, and always regards it as contributory infringement. Because judges have different opinions on indirect infringement, it comes out different adjudges basing the similar cases. This not only injured the authority and unification of judicature, but also injured the lawful rights of the patent holders. This article starts from the concept of patent indirect infringement, analyses the characters and the bases of legal philosophy of patent indirect infringement. Then the article introduces the behavior types, the ways of the act, the objects, the subjective conditions of patent indirect infringement, the relations between indirect infringement and direct infringement. The author tries to give some suggestions of improving the patent indirect infringement system in china.This article includes four parts. The first part introduces the concept, the characters, the foundations of legal philosophy of indirect infringement. The second part starts from the situations in our country, analyses the legislation and judicature conditions about the patent indirect infringement and introduces some cases to make it clear. The third part illustrates the regulations about patent indirect infringement in the United States, Japan, Germany and Europe Union and the differences between them through analyzing the behavior types, the ways of the acts, the objects, the subjective conditions of the patent indirect infringement, the relations between indirect infringement and direct infringement. The fourth part first points out the deficiency of patent indirect infringement in our country, then designs plans of perfecting the patent indirect infringement in our country: the law shall not stipulate the active inducement infringement which was included in American patent law, and shall only stipulate the patent indirect infringement; acts of indirect infringement shall be"sale or offering for sale"; the damage shall be the existence of the fact that injured the lawful rights of patent holder; it shall take correspond causality theory to judge the relation between the acts of indirect infringement and damage; the infringer shall conduct the act on purpose; the indirect infringement shall be based on direct infringement facts. At last, the author analyzes the defenses of indirect infringement.