Analysis Of Divided Infringement Of Multi-step Method Patent

Since the 12 th century, the birth of the patent system, which is the legislative purpose to strike a good balance between individual and community interests. A patent is an exclusive right to an invention which allows owner to forbid someone else from using the invention for commercial purposes in a particular jurisdiction, for a limited period of time. Patents are usually divided into product patents and method patent. Due to the fact that process or method patent is comprised of a series of intangible steps, unlike product patent, consist of physical component, it may contribute to a situation that method patent claims could be performed by multi-actors. With the development of society and technology, more and more methods patents emerge of a new situation in the new period. In the ever-changing Internet age, the divided infringement of multistep method patents continue to appear, which is the most typical representative of the network cloud computing technology. Step Patent biggest feature of such methods for patent claims defined by a single body is not implemented, but the case of sub-function with the presence.The biggest feature of such method patent claim is defined by multi-actor and multi-step. It contains cooperative behavior that makes difficult to judge patent infringement. Because China’s patent law only provides for direct infringement and the comprehensive coverage doctrine. While divided infringement of multi-step method patent is a term used to describe a situation where multiple actors, working in concert, infringe a patent claim. This type of infringement usually happens in method patents, which involve multiples of a process. It will be difficult for the patentee to prove the existence of direct patent infringement. On the other hand, there is no any official regulations about indirect infringement in our patent law. Find solutions to the type of infringement issue has become urgent task, which is the ultimate purpose of this article. Researching the solutions of this type infringement issue has become an urgent task, which also is the ultimate purpose of this article.The paper used many research method. Such as cases studying, literature reading and the combination of theories and practice. First, the “Akamai” case is used as a starting point, then I tried to sort out the rules of American jurisprudence about divided infringement of multi-step method patent. Before the promulgation of the United States patent law, there is no specific law to regulate patent infringement, but by the terms of the traditional tort law to protect the rights of the patentee. With the enactment of US patent law, the court gradually established the definition and determination of the direct patent infringement, contributory infringement, inducement of infringement and contributory infringement. However, these formulations are not completely fit with divided infringement of multi-step method patent. BMC case play a role as demarcation. The US Court reviewed the divided infringement issues from a decentralized to a complete understanding. Before the BMC case, there are “agency theory”, “some connection” and “participation and combined action”, which to deal with the patent infringement. When BMC case happened CAFC proposed the “control or direction” standard, and in the next year Muniauction case explained this standard further. At the time the US courts basically reached a consensus with dealing with such problems. Then I also used the method of reading literature by using ECUPL’s large number of library resource, surfing internet, CNKI and so on. These documents are much useful for me to build theoretical foundation. Finally, according to the theory and practice I searched the actual case in Chinese judicial practice for and pointed out some advises. On the other hand, I also offer some ideas about how to improve skills to patent application.The main content of this paper is divided into four parts:The main contents of the first chapter is about the overview of the divided infringement multi-step method patent. First, using the method patent as a breakthrough point, then I described the origin of divided infringement of multi-step method patent, which due to the popularity of Internet technology. At last, I summarized the characteristics of this type infringement in this section that for the objective of solving the problem.The second chapter follows the timeline of U.S. jurisprudence, combing the cases issued since before BMC case till Muniauction case, and mainly analyzes the jurisprudence of those happened after the issue of 1952 U.S. Patent Law. Before the BMC case, there are “agency theory”, “some connection” and “participation and combined action”, which to deal with the patent infringement. When BMC case happened CAFC proposed the “control or direction” standard, and in the next year Muniauction case explained this standard further. Until now the court has reached a consensus of dealing such type method patent infringement.The third chapter is based on the status quo of China’s legislature, and discussed the attitude of our courts. From the judicial practice, most of the courts deal the method patent with the common tort theory, sometimes introducing indirect infringement liability. I do think there are some flaws. First, if you do not consider the existence of contact between human actions and identified as contributory infringement, it is not fair for some people who even didn’t have the possibility to know the existence of method patent. Second, according to our law regulation, where two or more persons jointly commit a tort, causing harm to another person, they shall be liable jointly and severally. It is also unfair for some persons who involved the patent infringement. Finally, China’s patent law does not provide for indirect patent infringement and the court upon the application of the standards there are differences.Chapter IV is the main innovation of this paper. In this section, I proposed the rule for judging the multi-step patent infringement case from two aspects. On the one hand, we should treat the method patent infringement into two types by the standard of meaning contact and propose that in the case of divided infringement involving related parties, the joint infringement theory should be applied. When it comes to divided infringement involving innocent parties, we should introduce the “control or direction” standard. On the other hand, we also can improve our drafting skills of patent application to protect patentee’s right.