Comparative Research Of The Patent Indirect Infringement Also On The Improvement Of The Patent Indirect Infringement Of China

It is said that in the accordance with traditional theory of patent infringement, thedirect patent infringement constitutes only if the article is covered by all patentedtechnical elements. However in the practice, just punishing the direct infringement isnot enough to protect the right of patentee. Some person may not directly infringe thepatent, but aid and abet another to infringe. The other person may not perform alltechnical elements of patent claims, but implement the master part of patent orachieve all the elements by steps with secret and cunning manner. That which does notconstitute the direct infringement, but may contribute to or help the infringement ofsomeone else is patent indirect infringement. It is a new type of and special of patentinfringement in the field of intellectual property. In order to cover the defects ofdoctrine of direct infringement and effectively protect the patentee, many countriesin the world have constructed the system of patent indirect infringement. In theessential, what the doctrine of indirect infringement should face is whether thepatent cover the non-patented article, and if extant to, how extant to which theinfringement constitutes. Consequently, how to reasonably define the extent of it so asto balance the benefit of patentee and social public interest, becomes a big problemwhich people in academics and judiciary should overcome. In view of the speciallyfine and complete frame of indirect infringement which the countries have establishedand numbers of cases which they preserved, this paper tries to, with the comparativeangle of view, study and exploit the indirect infringement by analyzing theirsimilarities and differences, and we hope it is good for improving the level ofprotection of patent in China.This paper concludes more than 3,7000 words, and has three parts except the foreword and conclusions.The first part is about the brief history of the indirect infringement. The doctrineof indirect infringement has stemmed from the case-law of U.S., and actually itslegislation has grate influence with other countries'. Consequently, tracing the systemof indirect patent infringement equates in analyzing the generation and developmentof U.S.. U.S. has developed the doctrine of indirect patent infringement for onehundred years. The development can be divided into three stages. The first stage is theembryonic period of the system. The second stage is the developing stage of thesystem and in the third stage, U.S. finally established that system, stepping intowritten law stage gradually.The second part goes with the international comparative study of patent indirectinfringement. According to comparison with such countries as U.S., E.U, Japan andKorea, this part studies the types of actions, the requirement of the indirectinfringement and so on. It also analyzes the legal basis of indirect patent infringementfrom the character of patent and the balance of interest.The third part discusses the construction of patent indirect infringement in China.Firstly, demonstrate the necessity of legislation in judicial practice and legalperspective. Secondly, propose that we should systematically research the indirectpatent infringement ,and take into count how to be consistent with the legal traditionand system in China, which is something legislation and judicial practice of othercountries tell us. Finally, call for enacting the indirect patent infringement byemending patent law of china, and taking the types of actions and the requirement ofinfringement examples, ponder how to establish the system of indirect patentinfringement of China.