Research On The Determination Of The Divided Infringement Of Method Patents

With the development of science and technology,a new type of patent infringement against method patents has begun to appear,which is called "divided infringement of method patents."The so-called"divided infringement of method patents"is a concept put forward by Professor Lemly in the United States in 2004.It refers to the form of infringement which the steps of the method patent itself are implemented by different actors.In this kind of behavior,the multi-party actors each implemented a part of the patent step in the case of unintentional communication,but none of the actors performed the entire patent step alone.Divided infringement of method patents is consistent with the ordinary infringement of the patentee,and the patentee's patent is implemented without permission.Therefore,the behavior of the perpetrator should be regulated and punished.However,in China and many other countries in the world,it is not legally infringed by law.So this creates a patent dilemma-how should patent separation-type infringement be determined infringement?In order to solve this problem,it is first necessary to clarify the reason why the divided infringement of method patents cannot make infringement judgment.In 2018,the first case involving the divided infringement of method patents in China was concluded in the case of "Xidian Jietong v.Sony".The case went through two trials.The first and second courts made a completely different judgment on the issue.Taking the case as an example,the dilemma of this patent can be analyzed from the following aspects.First of all,from the perspective of direct infringement,China's"Patent Law"requires that patent direct infringement conforms to the"full coverage principle",but in the method of patent separation and infringement,the perpetrator does not implement all infringement steps alone,nor does it exist with other actors.Infringement means contact,so it does not constitute direct infringement of the patent.Secondly,from the perspective of indirect infringement,the mainstream doctrine of patent indirect infringement requires direct infringement as a premise.Under the premise that direct infringement is not established,it does not establish patent indirect infringement.This was the reason for Sony's divided infringement of method patents has not been identified as a patent infringement after two trials.To solve this problem,we should first solve the problem of the application and coordination of direct infringement and indi'rect infringement.We can innovatively learn from the US "direct and control theory"to attract the behavior of other actors like AS and AP service providers in the case of "Xidian Jietong v.Sony.In the conduct of the actor,the patent is directly infringed.Or based on the"illegal misappropriation theory",by referring to the provisions of Article 2 of the"Anti-Unfair Competition Law"to determine that the act constitutes infringement,thereby solving the problem of patent separation and infringement.