The Construction Of Patent Indirect Infringement System In China

In China’s academic circles and judicial practice circles,no consensus has been reached on the basic issues concerning to the construction of patent indirect infringement systems.From a theoretical point of view,the contradiction between the inadequacy of patent indirect infringement and the practical needs still exists.The former interpretation path of common infringement ignored the differences between them in the scope of behavior and the justification of the liability establishment which was impossible to resolve the dependence of patent indirect infringement identification on technical judgments and the needs of intellectual property policies.Therefore,it is necessary to establish a individual patent indirect infringement system.In the legislative model,as there was no substantial differences between inductive indirect infringement and the tort infringement of the infringement liability law,and in order to avoid systematic overlapping,the patent indirect infringement system was only necessary to regulate helping type indirect infringement.Patent indirect infringement does not rely on direct infringement and has its independent value.The element of non-direct infringement does not necessarily lead to the abuse of patent right while it may leave space for identifying the behavior of patent indirect infringement under the condition of “not considered as patent infringement”.From the perspective of comparative law,the issue of patent indirect infringement through the joint infringement rule in the United States is only a transitional form while the codification of patent indirect infringement is an inevitable historical trend.This system aims to overcome the natural defects of combination patents in patent protection,correspondingly,there are only helping type indirect infringement rules.Helping type indirect infringement includes offering for sale,sales,and importation.The aim of adding the behavior of providing indirect infringing goods abroad into adjustment is only the requirement of intellectual property strategies.Too much restrictions on patent indirect infringing goods will harm the effectiveness of the system.Subjectively,we only need to know that the patent exists and the item will be used to infringe the patent.There is no need to strictly follow the rule of “there is no indirect infringement without direct infringement.”.In judicial practice,there is a need to soften the elements of direct infringement.In Japan,it is enough to stipulate helping type indirect infringement,instead of adding inductive indirect infringement.However,transferring,renting and lending which has the same effect as sales should be included in the scope of adjustment.It is not reasonable to divide special products from non-special items,therefore,it is not necessary to make different requirements on subjective elements in terms of the specificity differences of items.It should be determined by the probable nature of direct infringement in order to judge whether direct infringement is an element.Patent indirect infringement has an independent status of infringement in Germany which essentially refers to helping type indirect infringement,and it only includes two types of behavior: offering for sale and transferring.The adoption of the unified expression “involved with the main elements of invention” on the item’s elements can reveal the essence of the problem.The legislator affirmed the importance of not using direct infringement as a requirement for the convenience in proof-providing of the patentee and for providing the patentee sufficient relief.At the same time,it clearly stipulates that patent indirect infringement can be determined under the circumstance of infringement immunity.Through theoretical analysis and comparative examination,the author believes that patent indirect infringement is not a special form of joint infringement but an independent type of patent infringement,and that the patent indirect infringement system only stipulates helping type indirect infringement;in the type of behavior,a full enumeration method should be adopted,while in expression,“offering for transfer” and “transferring” can be used to summarize which has the same effect as “offering for sale” and “sales”;on the item elements,“associated with the main elements of invention” can be a unified judgment standard;it is only necessary to specify “known” on subjective elements which specifically includes knowing that patent exists and indirect infringing objects will be used to infringe patents;the constitution of patent indirect infringement is not necessary to be based on the existence of direct infringement,while for the occasion of “not considered as patent infringement”,the constitution of patent indirect infringement should be considered from the perspective of legislative intent.