The Analysis On Seller's Duty Of Patent Infringement

Almost all of the law are influenced by such factors as politics, ecomomics and cultures. This article has analyzed why that most of right holder always pursue seller's duty of patent infringement, in order to discuss this question. How to define sellers'compensation duty of patent infringement is embodied in art 63(2) of The Patent Law, and this paper has analyzed art 63(2) of The Patent Law by historical, economic, philosophic and legal basis methods.Through twice modifications about The Patent Law, it can be seen that the benefits of right holders and others are both end of the balance, and The Patent Law is the fulcrum, any little fulcrum's movement will break the former balance and establish the new balance. Besides, art 63(2) of The Patent Law has chose doctrine of on-fault liability on infringement, but doctrine of liability for wrong on compensation, is based on economy cost factor. Art 63(2) of The Patent Law is accord with jurisprudence principle that right and duty is unified, and it's accord with principle of justice and equity. It conform to Maxism-philosophy theory. Art 63(2) of The Patent Law is conform The Patent Law's fundamental purpose and principle. This paper believes that art 63(2) of The Patent Law, as a result of multi-stakeholder, match the basic purpose and principle of The Patent Law, and it is benefit to development of society. But because of the inherent defect—legal rigidities, the related provision is abused by right holders, so this paper makes several suggestions about art 63(2) of The Patent Law. The judge of seller's subjective fault shouldn't be only based on obigee's warning notice, but should be based on authoritative government. I hope those proposals will help patent infringement to be used suitable, freedom from abuse, and be better for China's economic development and social progress.