Research On The Identification System Of Patent Indirect Infringement Liability

The patent indirect infringement system is closely related to the economic development and social progress of a country.Indirect patent infringement does not directly infringe the patent,but provides assistance for the direct implementation of patented technology in an indirect way,which will seriously increase the risk of patent infringement.As an important part of intellectual property rights,patent rights reflect the degree of conformity between science and technology and social development in a certain period,which is an important guarantee for a country to go out and the key to create Chinese brands.With the continuous development and improvement of the patent system,the phenomenon of patent infringement also comes into being.In China's patent law,there are relatively clear provisions on direct patent infringement,but no authoritative provisions on indirect patent infringement.In recent years,indirect patent infringement has become the focus and difficulty of many patent applicators in the theoretical circle and judicial practice.In the previous indirect patent infringement judgment,the "full coverage principle" is applied as the judgment standard of indirect patent infringement,requiring all technical features of the patent to be included in the accused infringing products and methods,and even using the common infringement theory to solve practical problems.In addition,in the system of patent indirect infringement liability,the protection scope of "patent right" is extended to non-patented products,which also challenges the traditional principle of patent infringement.Throughout the intellectual property rights to build a relatively perfect intellectual property system of Anglo-American law system and continental law system countries,mostly regulated the system of patent indirect infringement,and adapted to its own economic and social development,of the patent law in our country,has changed three times,but still not on the patent indirect infringement of the rules of the system.In practice,the common tort theory is often cited for handling.In the provisions on certain issues concerning the trial of patent infringement disputes issued by the supreme people's court in 2016,the indirect infringement of patents is analyzed in the form of low-ranking judicial interpretation,but it is enough to attract wide attention.In the guidance opinions of the Supreme Court,it is obvious that indirect patent infringement is not regarded as an independent infringement,but recognized in the form of joint infringement,which leadsto the phenomenon of different standards in the trial and seriously affects the stability and authority of the law.Therefore,China should clearly regard patent as an independent infringement in the legislation.Starting from the balanced protection of intellectual property rights,this paper aims to balance the protection of the interests of the patentee and the sharing of social resources by standardizing the indirect patent infringement system.In the context of indirect patent infringement,this paper,relying on judicial practice and judicial interpretation of the Supreme Court,discusses from the following four parts.The first part,from the first case of the United States patent indirect infringement,introduced the system of patent indirect infringement responsibility identification,at the same time,this paper introduces the system of patent indirect infringement of the other,the definition of the concept,has been clear about the gradual understanding of patent indirect infringement,relatively robust to help lure and infringing copyright indirect patent infringement behavior type definition,but also clearly put forward the ways of infringement of patent indirect infringement object particularity and the complexity of concealment,criteria,and other characteristics.The second part,according to the relevant legislation and practice in China,analyzes the status quo of China's patent indirect infringement liability identification system,and puts forward the existing defects in the current patent indirect infringement system,that is too broad patent indirect infringement system,vague elements,lack of relevant safeguards.It confuses the application of indirect patent infringement and joint patent infringement,and at the same time,the identification standard of liability principle is not specific and clear enough.The third part analyzes the legislation and judicial practice of indirect patent infringement in the United States.The legislative practice of Germany,a major civil law country,plays an important role in guiding and protecting the relevant legislation and practice of China.As the source country of patent indirect infringement,the United States has made detailed provisions on this phenomenon.The indirect infringement of patent is divided into inducement infringement and assistance infringement,and corresponding provisions are made according to different situations.As a civil law country with perfect legal system,Germanyhas also made relatively clear provisions on the determination of patent indirect tort liability.The fourth part,through the analysis of the above problems,puts forward Suggestions for improvement,emphasizes the type analysis of indirect patent infringement,as well as the classification of constituent elements,and makes it clear that inducible infringement can be included in the scope of common infringement,so as to help the infringement to be dealt with as indirect infringement.Designed to give the patentee careful protection measures,at the same time,to protect the public interest.