Study On System Of Patent Indirect Infringement

Patent infringement system is an essential part in the system of the patent law; it plays an important role that maintenances patentee legitimate rights and interests. The patent law of the People's Republic of China the article 11 set patent infringement. The regulation of patent law belongs to the patent direct infringement. For such infringement use "overall cover" criteria to judge, namely tortfeasor implementation must conform to all patent technology of the patentee in the claims. If the act not reach "overall cover" standard, it is not the patent infringement of patent law in China. However, with the continuous development of technology, patent infringement becomes more concealed. The actor tends to avoid the overall cover principle in order to avoid the patent direct infringement, namely the actor deliberately provided specific items of patent technology to others. The actor behavior is not the direct infringement of patent law. It is the indirect infringement. Patent indirect infringement as the part of the patent infringement, the status and function also is very important. This system not only can maintain the patentee legal rights and interests, but also can to a certain degree limit the patent right, prevent excessive expansion of patent right, thus maintaining legal rights and interests of social public. The system is related to the vital interests of patentee and the public. The patent indirect infringement system has important theoretical and practical significance in patent law system. The system has been established in USA, Japan, Germany, EU and other countries or regions experienced a long time development. At present, the patent law of the People's Republic of China still not establishes the patent indirect infringement system. But the discussion on the system have been carried for many years, the scholars also form some valuable ideas. A large number of cases about the patent indirect infringement have also appeared in judicial practice. From the current situation analysis, the patent indirect infringement system has the existing reality and necessity. This paper discusses and analyzes the patent indirect infringement system in order to provide helps for the constructing of the patent indirect infringement system. The first section of this thesis gives basic introduction on patent indirect infringement. First, the author makes basic introduction on the origin, development and the codification of patent indirect infringement; second, the author discusses the concept of patent indirect infringement in order to identify the patent indirect infringement referring to the indirect infringement of narrow sense in this thesis, namely contributory infringement. Then the author analyses the features of patent indirect infringement in order to distinguish direct and indirect infringement. At last, the author analyzes the nature of patent indirect infringement, which also is relationship of direct infringement and indirect infringement. The author agrees with indirect infringement "independent".The author researches and analyzes foreign legislation in the second section of this thesis, which mainly aim at the U.S.A, Japan, Germany, EU and other countries and regions legislative regulations of the patent indirect infringement. First of all, the author briefly introduces legislative cases of these countries and regions; secondly, the author makes a brief comparison and analysis on different legislation of several countries.The third section of this thesis briefly analyzes and discusses reality and necessity on constructing patent indirect infringement system. Reality aspect analyzes actual situation of judicial practice and legislation lagging. Necessity lies in remedy defects of overall cover principle, perfect system of patent law; remedy shortage of traditional tort system, solve problem of judicial practice and; meet with international standards need, and conform to the internationalization.The fourth section of this thesis puts forward concrete suggestions on constructing patent indirect infringement system in China, including: constructing behavior object, behavior and behavior type, subjective factors, relationship of direct infringement and indirect infringement, burden of proof and defenses and civil liability of patent indirect infringement under the principle of the public interest with the patentee interests balance.The last section of the thesis, the author makes a conclusion.