Study On Indirect Patent Infringement

The essence of indirect patent infringement is the expansion of patentright, which expands the patent to the key components that not within thelimits of the monopoly, it involves the difficult problem of interestbalancing. There has been a major controversy on indirect patentinfringement problems in our country. The third revision of the PatentLaw is still set aside the problem, in response to the theoretic andpractical problems of indirect patent infringement, this article startsfrom a domestic theory controversy, analyzes and probes indirect patentinfringement issues base on existed academic studies. Via demonstratingthe necessity of building the indirect patent infringement system in China,utilizing the related legal systems of other countries, dredging the basictheory of indirect patent infringement, the author tries to build theindirect patent infringement system of China, and wishes that will behelpful to the formally established system.This article is divided into four parts to discuss indirect patentinfringement issues:The first chapter is an overview of indirect patent infringement.First, introduces the meaning of indirect patent infringement initially,gives examples showing specific forms of indirect patent infringement,and reveals the indirect patent infringement problems, so as to enhancethe reader’s perceptual knowledge on this problem. Second, describes thecurrent situation of China’s indirect patent infringement from threeaspects, including the legislative, the judicial and the theoretical studies. Third, by demonstrating the existed Patent Law cannot resolveindirect infringement, as well as the evident drawbacks of the joint tortmodel, to prove the necessity of building independent indirect patentinfringement system contrarily.The second chapter is an investigation of Indirect PatentInfringement systems of foreign countries, which aims at providing areference for our own system. In common law countries, the author chosethe origin country, the United States indirect patent infringement systemas representative, and focused on the constituent elements ofcontributory infringement. In civil law countries, the author selectedGermany and Japan as representatives, and summarized the constituentelements of indirect patent infringement from the law itself.The third chapter is a thinking of basic theories of indirect patentinfringement, which includes conditions, specific forms, definitions andcharacteristics of indirect patent infringement. Besides that, the authoradvocated a flexible legislation as a direction in China’s buildingsystem. About the correlative theories of indirect patent infringement,the author agrees with that the constitute elements of contributoryinfringement does not need the existence of direct infringement, thusexcludes the induced infringement from the indirect patent infringement,and the author doesn’t think the specific form, that an indirect patentinfringement which compose of an direct infringement happened outside thedistrict of law, should be brought into our country’s law. So that theindirect infringement in this article is qualified to contributoryinfringement of providing or promising to provide articles to be usedexclusively for the patent or the non-stable articles. The fourth chapter is the institutional framework of indirect patentinfringement of China. In the basis of theories probes before, by thecomparative analysis of the strengths and weaknesses of the legislationof foreign countries, this chapter builds the framework for China’sindirect patent infringement system from four inspects, including thebehavior objects, the type of behavior, subjective fault and defenses.For the balance of interests, this chapter starts with the use of patentedkey component, that only the articles to be used exclusively for the patentand the non-stable articles under certain conditions constitute thebehavior objects. And the subjective fault is the constituting elementof indirect patent infringement. The type of behavior is limited to"supply or causes to be supplied", which aims at reserving flexible spacefor the legislative. In addition, from the opposite of the exercise ofrights, discusses abuse of civil rights defense and implied licensedefense, so as to find a balance point for the public interest and thepatentee’s interests.