Research On Indirect Patent Infringement

In recent years,Indirect Patent Infringement is a difficult problem that the people's court has been constantly emerging,at the same time,is also the focus of the judicial and theoretical circles.At present,there are three main disputes about the Indirect Patent Infringement in China.The relationship between Indirect Patent Infringement and Joint Infringement and how to take on the liability of the Indirect Patent Infringement.In the first problem.There are three different point of views,the subordinate point of view based on Direct Infringement,the independent view of Direct Infringement and the compromise on the basis of subordinate view and independence as an exception.We should accept “compromise” because “subordination” can't really cover all aspects of Indirect Patent Infringement and insistence on “independence” also leads to over-protection of patents.In the relationship between Indirect Patent Infringement and Joint Infringement.There are two different point of views,independent of Joint Infringement or contained in Joint Infringement.We should take the view of “independence”,because using the joint tort theory can't solve the problem of Indirect Infringement without Direct Infringement.When multiple indirect infringers appear,it is unfair for indirect infringers to assume the same responsibility with the direct infringer.In terms of liability for damages,there are two different point of views.To take responsibility separately or to take responsibility with the direct infringer collectively.As we can see,when multiple indirect infringers appear,to take responsibility with the direct infringer collectively could add the indirect infringer's loss.The independent responsibility in China has been widely approved.But the responsibility for independence isn't absolute,Joint and Several Liability can be applied when the direct infringer and the indirect infringer have conspiracy earlier.The legislation of Indirect Patent Infringement is imperative.The preparation for the legislative model of Indirect Patent Infringement,which inadvisably learns from American law regardless of the characteristic of parent law and tort law.The legislation of Indirect Patent Infringement should have only one type of contributory infringement,and the type of actively induce infringement should be stipulated by the provision of civil joint tort.Besides the subjective aspect of infringement constitution,in the objective aspect,the form of contributory infringement should adopt the conception of intermediate neutral-use article and strengthen the technical judgment,abandoning the standard of non-staple article.