The Establishment Of Responsibility System Of Indirect Patent Infringement In China

Patent system, along with social and economic development as well asscientific and technological progress, has entered the field of legal regulation. Patent,as a key branch of intellectual property rights, is a political tool for economic andsocial development. The establishment of patent legal system, as a part of the overallpublic policy, reflects the contradictions and reconciliations between scientific andtechnological development and social production relations in a certain period. Thedevelopment of science and technology, while bringing us benefits, presents us newlegal relation issues. The system of indirect patent infringement takes its shape undersuch a circumstance.Indirect patent infringement is a difficult problem for recent patent infringementcases settled by people’s court, and is also a hot issue concerned and discussed bycurrent judicial and theoretical circles. In the past determinations of patentinfringement, the principle of complete coverage—all technical characters must beincluded in settling infringed products or methods, otherwise the determination ofinfringement cannot be established—was the first principle for theoretical andjudicial circles. In practice, however, actors, to avoid responsibility for indirectpatent infringement, merely realize partial technical characters or all technicalcharacters through more actors. However, the current laws cannot determine suchpatent infringement, thus actors escape related legal sanctions. Some nations withfairly perfect IPRs have established responsibility systems of indirect patentinfringement to solve the problem, based on their legal and cultural traditions, andeconomic development. China’s Patent Law has been revised for three times, but thelaw has no systematic regulations on infringement indirect issues. In view of theblank area of indirect patent infringement in China’s legislation, and courts’solutions to such cases through joint infringement in practices, the Supreme People’sCourt has given some instructions on indirect patent infringement issues in theRegulations on Issues in Patent Infringement Case Trails. However, indirect patent infringement is fundamentally different from joint infringement. The instructions bythe Supreme People’s Court take it as a type of joint infringement in determinationrather than an independent patent infringement action. Therefore, there existphenomena of inadequate theoretical basis and inconsistent judgment standard whendetermining and assuming related responsibility in practices, thus seriously affectingthe stability and authority of laws.Patent system is deeply related to public affairs and policies. Therefore, toestablish a patent legal system should consider complete protections on patentees topromote industrial development, and even give more attention to the adverseinterests caused the impacts of patent monopoly to the whole society. This paper,with the purpose of balanced IPRs protection, advocates a responsibility system ofindirect patent infringement to strike a balance in protecting patentees’ interests andsharing social resources.The paper proposes first that there is a legislation blank area of responsibilitysystem of indirect patent infringement in China’s patent laws, and there existsserious defect and deficiency in judicial practices because the theory of jointinfringement is usually applied to settle indirect patent infringement cases. Theauthor believes that the theory of joint infringement is insufficient in solving allissues determined under the responsibility for indirect patent infringement. Therefore,it is imperative to establish a responsibility system of indirect patent infringement.Second, the paper analyzes the necessity and feasibility to establish the responsibilitysystem of indirect patent infringement in China. In this part, the author will expoundthe nature of IPRs, and the characteristics and judicial practices of patent right andindirect patent infringement. Moreover, some responses to current opposite pointswill lay theoretical foundations for the system establishment in following parts. Atlast, the author, by comparing the responsibility systems of indirect patentinfringement in nations, puts forward concrete suggestions on establishing China’sresponsibility system of patent indirect infringement based on China’s economic andsocial development, as well as legal and cultural traditions. In this part, the authorwill mainly analyze the relationship between indirect infringement and directinfringement, proposing to establish a responsibility system of indirect patent infringement without relying on practical direct infringement. Indirect patentinfringement has independent significance and value while direct infringement hasdifferences in compensation for damages only. Therefore, the paper makes asystematic and logical framework on responsibility system of indirect patentinfringement from five perspectives, the concept and types of indirect patentinfringement, imputation principle, components, exemptions and civil relief. Thefinal aim is to protect patentees and safeguard social public interests at the sametime.