The Research On The Judgmental Rule Of Divided Patent Infringement In The Environment Of Cloud Computing

Method patents have the characteristics of multi-agent implementation and multistep. It is known as split infringement when more than one party have implemented part of technical characteristics of a method patent separately, which conform with the entire technical characteristics altogether. When patentees suffer from split infringements, their interests and rights can not be effectively protected. In the cloud computing environment, given the cloud computing virtualization,multi-tenant and other features, the occurrence of method patent infringement might be promoted on a large scale, comparing to the traditional Internet environment. At present, with no indirect infringement system in our country, the theory and practice of direct infringement and joint tort can not be applied to issues of split infringement of method patent in the cloud environment. The kind of joint infringements that implemented by multi parties who have a common intention liaison should be considered as split infringement. Therefore, in the cloud environment, according to the different subjective intents of multiple parties, split infringement of method patent can be divided into two types, which are joint split infringement and inducing split infringement. Joint split infringement refers to none of the parties has actually implemented all procedures to infringe the method patent, but objectively, their respective procedures could constitute a infringement of method patent collectively,based on their common intention or negligence, or the combination of one party’s intention and others’ negligence. inducing split infringement means that none of the parties have implemented all the steps of method patent, the inducer would implement some of the procedures, meanwhile allure or help more others to implement partial technical characteristics, which would ultimately constitute a infringement by meeting all technical characteristics that required.Based on the legislative background of the United States, this article would analyze from common law era until twists and turns of decision of Akamai case, especially focusing on the comprehensive analysis on the new inducing infringement rules established by the judgment. The author argued that the establishment of mainovre should be the premise of inducing infringement, which is the inexorable requirement to maintain the inherent full coverage principle of patent rights. In this paper, it is considered that China should combine the latest indirect infringement system, When it comes to issues about joint split infringement, it should apply the principle of jointinfringement in civil law and insist on subjectivism doctrine to decide whether the infringement is established from the prospective of subjective malice. As for inducing infringement, the "control and direct" rule of United States should be timely introduced properly, whose specific compositions have been analyzed.