Research On The Constitutive Elements Of Contributory Infringement Of Patent

Contributory infringement is an integral part of the indirect patent infringement,and there is significance in both practice and theory for studying on its constitutive elements.This paper not only draws lessons from the advanced legislation and judicial practice of the United States,Japan and Germany,but also emphasizes the judicial practice of our country and analyze the judgment of contributory infringement and its existing problems,and then puts forward relevant suggestions to solve these problems by improving legislation.There are four problems in the theoretical study of the constitutive elements of contributory infringement.First,whether the existence of direct infringement should be the prerequisite of contributory infringement.Second,the definition of the acts of contributory infringement lacks the consideration of pre-remedy.Third,the discussion on the rationality of the "Sole-function Object" standard is not combined with the judicial practice in China.Fourth,the relationship between intent element and material element is neglected.In order to solve the above problems,this paper mainly proceeds from the understanding of the punishment of contributory infringement and the value of pre-remedy,and advocates that contributory infringement should be based on the high probability of direct infringement.As to the acts of contributory infringement,we need to explore its rationality based on the behavior itself and the legislative value orientation of pre-remedy,and suggest expanding the behavior modes to manufacture,import,sale and promise to sale.In terms of material element,we can know that the standard of"Sole-function object" in our country still has space for judicial application.Based on this,the best choice is to improve the existing theoretical framework:introducing "The multifunction object related to invention" on the basis of "Sole-function object".As for the intent element of contributory infringement,whether it is presumption of Intent or knowing,it can be determined by the relationship between the intent element and material element.Different objects adopt different intent elements:"Sole-function object" presumes intent,and "Multifunction object" adopts knowing.