The Research Of Infringement Of Cloud Computing Patents

The infringement of cloud computing patent refers that without permission of the patentee of cloud computing, the action of infringing upon the interests of patentee with the purposes of business. Due to the characteristics of cloud technology, the protection of the infringement of cloud computing patent exist dilemmas:Firstly, there are dilemmas in the judgment of the divided infringement; secondly, transnational infringement is general; thirdly, the allocation of burden of proof is difficult. The judging principle of patent infringement in China is Comprehensive Coverage, meanwhile being supplemented by Doctrine of Equivalents. With regard to the dilemmas in the judgment of the divided infringement, some Chinese scholars have suggested that introducing the principle of Inducing Infringement to make up for the deficiencies of the principle of "Comprehensive Coverage". However, in 2014, the US Supreme Court abolished the principle of Inducing Infringement and restated that Inducing Infringement should be based on the premise of direct infringement. It is proved that China should still adhere to the existing principle of Joint Infringement for the infringement judgment with multi-subjects and multi-steps, but introduce the criterion of Command or Control of the United States and clarify the liabilities to make the joint and several liabilities more fair. For the transnational infringement of cloud computing patent, it is still difficult for the domestic law to regulate it due to the legal loopholes. Thus, we could draw on the Article 271(f) of United States Patent Law and corresponding cases and then enact regulations to protect the cloud computing patent which is not bound by territoriality. In the infringement lawsuit of cloud computing patent, problems of the burden of proof still exist. The existing principle of burden of proof is adverse to the protection of the patent right. China should amend the laws and change the applicable conditions of the inversion of burden of proof and stipulate that the principle should be used for the infringement of cloud computing patent.