Study On The System Of Indirect Infringement Of Patent

With the Indirect infringement of patent is a special regime in patent infringement determination, whose purpose is to act against those behaviors that can’t be judged by direct infringement directly but cause disruption to patent right. With the continuous renewal of invention and development of patent technology, the requested patent right contents are more and more complex, and an authorized patent usually contains a number of essential technical features, moreover because these technical features can’t be stated by language objectively, actually and accurately, compared with other civil rights, patent right doesn’t have a clear and defined right boundary, resulted in enough space left for the diversity of patent infringement. Substantive examination, including the doctrine of equivalents, as the base and core of judge, can’t deal with those behaviors that sell a device with partial but indispensable technical features of essential technical features of a patent. This kind of behaviors can not only increase direct infringement, but also encroach the interests of the patent holder by indirect way. More importantly, if don’t prohibit them, the balance of interests mechanism which patent system bases on will be broken. Although the theory of contributory infringement can be applied to solve this dilemma in practice, it can’t work in the situation of infringement determination that the third party’s behavior can’t be considered as direct infringement. Moreover contributory infringement and indirect infringement are different apparently in theory, The popularity of 3D print is a good example of this, when malicious competitors among patentees produce and diffuse parameters and graphics of 3D print to the public gratuitously, they and who form contributory infringement, and whether their behavior can be forbidden by existing patent infringement system, the answer may be negative. Therefore the present of indirect patent infringement system can make up for the deficiency of the principle of substantive examination, provide an effective protection for patent holder and play an important role to settle patent infringement problem in the impact of new technology. However the deficiency of indirect patent infringement should also be addressed, as the judicial practice in the United States demonstrated, the impertinent use of indirect infringement can protect patentee, it also causes the protection scope of patent right expands to non-patented technology andfurther harms the public interests. The key to solve it is to form indirect patent infringement system based on industry division, because patent system has the essential properties of industry division, in different industries there are different requirements for the level of patent protection, for example, companies in biological pharmaceutical industry appeal to enhance the patent protection strongly, however, in IT industry, companies hope a low level of patent protection in order to develop comfortably. The industry division property of patent system makes the indirect patent infringement not be used universally, but be leveraged according to different industries, which can protect the public interests and provide legal protection for patent right.However, in China the situation is that the judicial case involved in indirect patent infringement appeared in 1993, after that the theoretical research about this problem has started, until now the corresponding system isn’t instituted in legal, only existing some regulations in internal guidance of several courts. The main reason of this is that there isn’t a uniform agreement about this problem, and opposition appears usually. Although there are some scholars who approve, there still are some disputations about some specific suggestions. The legislature and the supreme people’s court on the purpose to protect public interests persist the baseline of “substantive examination”. Based on this, we first introduce the essential property of indirect patent infringement system and the new problems in 3D print, elaborating the internationally advanced legislative experience and the present research situation in China, then propose a legislative suggestion about indirect patent infringement system based on industry division combined with the diversity of inventions.There are five parts in this paper.In the first section, there is a general introduction of indirect patent infringement. Firstly sort out its basic conceptions, giving its definition from different researchers. Then generalize the legal feature of indirect patent infringement, compared with direct patent infringement, there are many unique legal characteristics of indirect patent infringement in behavioral pattern, judgment thinking and defense reason, also analyze the difference between indirect infringement and contributory infringement in the aspect of connotation, subjective essentials, burden sharing and judicial proceedings in theory. Finally combined with the technical property of 3D print, the effect on indirect patent infringement played by print behavior with the nature of private and nonoperation and the action of producing and diffusing parameters and graphics of 3D print is proposed.The second part is a comparative study among relevant abroad institutions, analyzing the legislation specification and juridical practice of indirect patent infringement in American, Japan and German. American is the source of indirect patent infringement and is also the best developed country about it. However its development was full of frustration in American, after gaming with anti-monopoly law repeatedly and encouraged and restrained by judicial precedent, indirect patent infringement system formed eventually. For Japan, it also has abundant experience in legislation, and in 1959 there had been the legislation about this problem. However, due to the strict restriction in legislation, there is scarce usable space in juridical practice, following several amendment and improvement, it has been the current legislation in Japan. There is a little late for German to legislate this problem, but there is its specificity. Its legislation purpose is to expand the protection of patent right to the preparatory stage which is before implementing the whole characteristics of patent totally. Based on this, its indirect infringement is unique and divides objects by whether can be obtained from general circulation domain, following this to stipulate other constitutive components respectively.In the third section, the present situation of indirect patent infringement in China is analyzed systematically, including the status of justice, legislation and theoretical research. Judicial status mainly gives relevant cases in our juridical practices and the existing problems about the same case with different judge and lack of judge base. But these problems stem from without relevant regulation in legislation, when encounter them, people’s court can only make some normalization by the way of issuing guidelines, which is valuable for legislation and theoretical research. Due to the fact that these guidelines belong to internal norm of people’s count, which is void, the awkward situation with no suitable legislation can’t be settled. For the part of theoretical research, the disputes and relevant reasons in this field in China are arranged explicitly. Among these the prime problem is whether the system should be constituted or not. In favor of reasons are that indirect infringement has specific legal features, and contributory infringement can’t solve relevant legal problems fundamentally, at the same time, other countries such as American, Japan and German all have the related systems, we also need to form it as soon as possible. However opponents consider that although indirect infringement is a new problem, it can be encompassed in the theory of contributory infringement, and if expand its usage, it will ruin the right of the public to apply existing technology. Another disputed problem is how to put up specific regulations, specifically there are two kinds of debates, “independent” and “subordinate”, for the relationship between indirect infringement and direct infringement; for the categories of indirect infringement behavior disputations is about generalized or narrow; there are debates about “exclusive goods ” and “ not exclusive goods” for behavioral objects; disputation that whether subjective requirement should be asked for fault and whether behavioral pattern includes production, usage and import.The fourth part proposes a system conception to improve indirect patent infringement, which is also the core in this paper. Based on above analysis and argument, it is considered that we should stipulate indirect patent infringement system on the legislation, the reasons are that first the legal issues from indirect infringement should be settled; secondly, contributory infringement can’t solve essential problems; thirdly, the independence of indirect patent infringement is stressed by the novel issues of 3D print; lastly it is aimed to maintenance the unification of law implementation. But considering the diversity of inventions and the prime characteristics of industry division for patent system, this system should be instituted based on industry division, the reason is that referring to industry division not only conforms to legal properties of patent system, but also overcomes the disadvantage of general use of indirect infringement, moreover it is operable. According to the request of industry, for those need to reinforce the patent protection, it is necessary to leverage this system, otherwise doesn’t use it for those to weaken the patent protection. Specifically,(1) indirect patent infringement should adopt “independent theory”;(2) the aim of production and management should be excluded from essential components;(3) behavioral types should include the action to product and diffuse parameters and figures of 3D print;(4) behavioral objects can be divided as “exclusive goods ” and “ not exclusive goods” and distinguished with other components.The last part is the conclusion.