Study On The Fundamental Issue Of Patent Indirect Infringement

With the development of the society, the number of patent infringement is increasing in our country. The means of patent infringement become variety and secret. There are more and more patent infringement cases in our society. The criteria of the patent infringement is the principle of universal coverage, that is the accused object infringes the existing patent right only when it cover all the technical features of patent. If the accused object lacks any essential technical feature in the claims, it doesn’t infringe the patent right. In practice, there are person just produce the products covering part technical features in the claims of existing patent to avoid patent infringement. So the current patent law cannot be fully effective protect the patent right. In order to effectively protect the legitimate rights and interests of patentee, the legal theory of patent indirect infringement gradually developed in practice.Patent indirect infringement is one of the most difficult problems in the protection of the patent right. Because the Patent Law should provide adequate protection to the patentee, meanwhile it also should avoid the excessive patent protection that unduly restricts the normal production and business operation activities of others. The determination of the equilibrium point has great significance for the protection of the patent right. It is necessary to discuss and set up the system of patent indirect infringement.The current Chinese Patent Law has been three revisions. The article 11 of the Chinese Patent Law prescribes the patent direct infringement behavior, so far the indirect infringement of patent system is not provided in our Patent Law. We only can only find the sporadic provisions relating to patent joint infringement in the civil law of the People’s Republic of China(hereinafter referred to as the "general principles of the civil law"), the Supreme Court judicial interpretation. But patent indirect infringement act can’t simply be deemed to patent joint infringement act. And we also can’t determine the patent indirect infringement as the patent joint infringement in the judicial practice. There are no written provisions on this issue in our country. But there are more and more patent indirect infringement dispute case. Because of the lack of written directly legal provisions, the courts handling such cases normally make the judgement on the common tort theory. Sometimes the first instance court and second instance court make completely opposite judgement on the similar case, even there are opposite judgements made by different courts to the similar facts and evidence of cases. Some case finally cannot sanctions indirect infringer, so it can’t really effectively protect the interests of the patentee, also cannot reflect the legislation of the patent law and related laws and regulations in China. When the patent indirect infringement proceedings sometimes occurs, many courts have to use general rules of the joint and several liability which is prescribed in the Civil Law to adjust the dispute about the indirect infringement. But it can not commendably settle the problem by using the general rules of the joint and several liabilities, and much negative impact is brought about instead. The regional court’s reference criterion varies, and even is widely divergent. It is difficult to guarantee that judicial result is fair.There are more and more patent indirect infringements in the practice. So we have to consider and resolved this problem. Patent Law can’t provide full protection to the patent right without the system of patent indirect infringement. With the speeding up of economic globalization and the rapid development of our economy, our enterprises increasingly take part in the international market and participate in international competition. The patent consciousness is gradually strengthened. In order to make our country’s patent system better integrating with the international level, providing the powerful legal supporting for the enterprise to participate in international competition to adapt to the needs of international competition, it is necessary to establish the system of patent indirect infringement in our country.Based on the real patent indirect infringement case of our company, the author compared with the patent direct infringement and patent indirect infringement, and combined with relevant judicial interpretations in our country and abroad laws. I hope that this thesis will give some advices to the regulation of the patent infringement.Except for the conclusion, this thesis is divided into five parts.The first part analyzes the real patent indirect infringement case of our company. Through analyzing and summarizing this case, the author made three litigation strategies based on different defendants. The different between said litigation strategies is based on the confirmation and difference of patent direct infringement and patent indirect infringement. But because of the lacking of provisions on the patent indirect infringement behavior in our laws, it is uncertain whether the patentee will win the litigation. According to the requirements of the university degree application, the author briefly described the literature review, the significance and method of the thesis, the main innovation and inadequate.The second part analyzes the basic theory of patent infringement, which is about the brief concept, nature and so on. The patent right is a kind of intellectual property rights. The patentee access to national patent authorization through public technology solutions, then the patentee or the assignee get the right of exclusive implementation of the patent within the scope of authorized countries within the time period in accordance with the law. The patent protection scope refers to the legal effect of invention patent covered range. This thesis analyzed the subjective factor, objective elements, object elements and results requirements of patent indirect infringement. The thesis compared with the patent direct infringement and patent indirect infringement.The third part goes with the legislation of patent infringement. The thesis analyzes the legislation of patent direct infringement and patent indirect infringement in our country and aboard. According to comparison with such countries as US, EU, Japan, this part studies the patent protection systems. Comparing with the legislation of said countries, there are differences on the patent indirect infringement behavior person’s subjective fault, indirect patent infringement scope limits, the object of indirect patent infringement and the relationship of patent direct infringement and the indirect patent infringement.The fourth part mainly analyzes the juridical practice of patent indirect infringement in our country. The author searched and analyzed a large amount of judgement on the ownership of intellectual property, patent indirect infringement, and classified said cases according to the trial court, ruling time, categories. Then the author made the quantitative analysis of acquired data, trying to find out the problem of patent indirect infringement determination in our judicial practice. The author pointed out the limitation both in legislation and practice of our country’s indirect infringement. Based on the above dissertation, the author illustrated that it is necessary to establish the system of patent indirect infringement in our country.The fifth part gives the proposal of building a legislative system in China. This part provides some legislative suggestion about the system of patent indirect infringement from the type of indirect infringement, objective behavior, and object of indirect infringement and criterion of liability and so on.The innovation of this thesis lies in the comprehensive study of patent indirect infringement. Based on the studying of patent indirect infringement system of other countries, the author analyzed the main characteristics of the system of patent indirect infringement to explore their commonalities and differences. The author also studied the provisions relative to patent indirect infringement in our country, and analyzed the legislative background and the status of the judicial practice of patent indirect infringement.The innovation of this thesis is that the author provided his opinions and suggestion on the imputation principle, constitutive requirements and the causal relationship of the patent indirect infringement. The author further provided the suggestion on the legislation of the patent indirect infringement in the existing civil law and the patent system. This is the meaning and value of this thesis.The shortage of the thesis is that the studying on the theory and legislative system of patent indirect infringement of foreign countries is less than that of our country. The complicate problems of patent indirect infringement, such as damage compensation determination, the calculation methods of indirect infringement of patent product range defined, need further study. The author hopes that this thesis can have the effect on this topic. The author will focus on the development of the system of patent infringement in our country.