The Study Of The Judgment Of Patent Indirect Infringement

Indirect patent infringement issues in our country have always been controversial. China’s Patent Law Article XI of direct patent infringement made specific provisions, but did not address the issue of indirect infringement. According to China’s patent law, patentee can only stop direct patent infringement, but the practice of States shows that only stopping direct infringement is not enough for protecting the patent owner’s benefits. Faced with the current situation of China’s indirect patent infringement case arise one after another one, to strengthen the protection of the interests of patent holders and accelerate research on indirect patent infringement issues are particularly necessary. However, the substantive of indirect patent infringement issue is to expand patent right to the key components of a patent without the patentee’s control, its criteria and methods related to the balance between the interests of patent holders and the public interest, so in theory and practice is not ripe, the third revision of the Patent Law shelved the matter of indirect patent infringement. Therefore, under the background of current legislation is lagging behind and justice hasn’t a standard uniform, a major problem faced by indirect patent infringement is difficult to determination.For the sake of response the problem that it’s difficult to judge indirect patent infringement in the practice, this paper is depend on the basic theory and classic documentation,comb those related evidence and general methods that we have used when we deal with indirect patent infringement, on the basis of fully considering the interests between the public and patentee, by drawing lessons from other country’s law about indirect patent infringement, this article put forward a proposal to build a judgment system of indirect patent infringement, and launch a specific discussion from aspects of the constitutive elements and negates. This article is divided into three parts to study the determination problem of patent indirect infringement.The primary chapter summarizes the basic theory of indirect patent infringement firstly, and combined with the author’s thinking on the meaning of related concepts identifies its extensions of concepts, provides a theoretical support for the study of the judgment of patent indirect infringement below; Secondly, this chapter shows the specific forms of patent indirect infringement over the analysis of a typical case, initially reveals the problems of patent indirect infringement judgment by examples, and provides the analysis of the text for case material; Finally, combined with a detailed analysis of the cases, this chapter presents the determination problem of patent indirect infringement.The second chapter is based on the basic theory of patent indirect infringement, combing and researching the status quo of indirect patent infringement at home and abroad, and elaborates the defects of indirect patent infringement judgment on the basis of the basic theory and the status quo. This chapter begins with combing the legislative status quo about indirect patent infringement judgment; Secondly, this chapter conducts a qualitative and quantitative analysis on the relevant indirect patent infringement case in the case and documents database of the magic weapon of Peking University, summarizes the common practice of indirect patent infringement judgment in the judicial practice; Once again, the chapter makes a detailed investigation on the relevant provisions of foreign indirect patent infringement; Finally, on the basis of combing the status quo of indirect patent infringement at home and abroad, this chapter points out the drawbacks of indirect patent infringement judgment in our country.In view of the problem of it’s difficult to determine indirect patent infringement, chapter III based on the basic theory discussed in the first chapter and the researching of the relevant provisions of foreign indirect patent infringement in the second chapter, makes suggestion of building indirect patent infringement judgment system, conducts a detailed exposition about the judgment system from initial recognition, further judgment and negates, in order to provide indirect patent infringement judgment in our country with beneficial reference.