The Research On System Construction Of Patent Indirect Infringement

In March 2016,the Supreme People's Court issued Interpretations of the Supreme People's Court Concerning Certain Issues on Application of Law for Trial of Cases on Disputes over Patent Infringement(II)([2016] No.1 Judicial Interpretation)which sets the patent indirect infringement clause in article 21,confirming the kind of infringement at judicial level formally.At present,China is going to have the fourth revision of its Patent Law.The Legislative Affairs Office has just released The Revised Draft of the Patent Law(Draft for Review).In the new article 62,joint liability is established for manufacturers who knowingly-manufacture infringing goods as well as those who induce infringement.However,the provisions of patent indirect infringement in current draft and judicial interpretation are not perfect,the scope of application is too narrow,and there are still ambiguous areas where the provisions cannot be applied.Therefore,it is necessary to have an in-depth discussion on patent indirect infringement with a view to make recommendations for the establishment of patent indirect infringement system that conforms to China's national conditions.The main body of this thesis contains four parts.The first part explores the origin of patent indirect infringement,and analyzes the relations and differences between relevant concepts including direct infringement,indirect infringement and joint infringement.This thesis holds patent indirect infringement originates from joint infringement.However,due to the technical particularity of patents,it is necessary to make separate legislation on patent indirect infringement under the framework of joint infringement theory.The second part has a research on foreign legislation and judicial practice from the perspective of comparative law.At present,there are two legislation patterns of patent indirect infringement in the world: dualism and monism.The industrial structure and intellectual property policies in different countries have influenced their patent indirect infringement system significantly.The third part sorts out the current legislative status and judicial cases in China.Due to the lack of legislation,the judges usually invoke the theory of joint infringement to deal with patent indirect infringement cases.Different judgments are often made in similar cases,leading to great controversy.The promulgation of Article 21 of [2016] No.1 Judicial Interpretation has ended the long-term lack of applicable regulations in judicial trials.However,there are still many areas where the judicial interpretation needs to be improved.In addition,judicial interpretation cannot substitute legislation.China should revise the Patent Law and formally confirm the patent indirect infringement system at the legislation level.The fourth part discusses the construction of the patent indirect infringement system in line with China's national condition.This article holds that China's patent indirect infringement system should be a dual legislation under the framework of joint infringement theory,which introduces contributory infringement and inducing infringement respectively.At the same time,this article analyzes the constitutive elements of patent indirect infringement from behavioral objects,behavioral patterns,subjective status,extraterritoriality,etc.,and proposes amendments and suggestions for the draft amendment of Patent Law.