Research On The Origin Of Indirect Infringement Of Patent And Its System Construction

The patent indirect infringement of patent refers to the act of making,selling,the offering to sell or importing the goods especially used for a patented product or for the implementation of method patent for the purpose of production and operation without the permission of patentee.The academic circle of our country holds that patent indirect infringement rules which were established in Wallace v.Holmes patent dispute trial heard by Connecticut District circuit court in 1871 and written as article 271 of American Patent Law in 1952,containing inducing infringement and contributory infringement,are actually a type of joint tort in civil law system.Patent indirect infringement began as an independent infringement system separated from common tort in civil law in Japanese Patent Law in 1959,the article 107 of which stipulated a tort which clearly do not take "knowingly" as the subjective premise and neither a direct infringement of patent rights nor a common tort in continental law system,thus it became a a new independent tort.It is called "indirect infringement of patent" by providing patent products or special goods implementing patent methods to make others complete the conduct of the direct infringement of patent which doesn't take clearly knowing as a prerequisite.The mainstream view of the domestic academia holds that the indirect infringement of patent must be based on the subjective "knowing" of the infringer,so that the 271st provisions of the patent law of the United States in 1952 are considered as the origin of the patent "indirect infringement".The misreading of the theory makes the 21 article of the judicial interpretation of the judicial interpretation(2)of patent law stipulates that the so-called "indirect infringement" is conditional on the subjective knowledge of the perpetrator.In essence,this kind of behavior can be regulated in the joint tort of the tort liability law,and there is no need to be specialized in the interpretation.This also leads to the fact that the infringer don't have to bear the tort liability in practice if the obligee can not prove the subjective knowledge of the actor.Thus,the patent indirect infringement can not prevent split infringement and protect patent owners.The future judicial interpretation or revision of the patent law should establish an indirect patent infringement system in accordance with the following rules:In addition to the provisions of Patent Law,Infringement of patent rights should be considered to be an act that any unit or individual makes,sells,promises to sell or imports patent product or special articles used for implementing patent methods with the purpose of production and operation without the permission of patentee except that the infringer can prove the special articles can be used for other purposes and if the infringer can prove that he does not know the fact that the article is exclusive to the patent product or dedicated to the implementation of the patent method,he shall bear no compensation liabilities.