Research On Cloud Computing Method Patent Infringement Determination Rules

With the promotion of technology,China has entered the era of cloud computing.As companies at home and abroad scramble to speed up the deployment of cloud computing intellectual property in China,cloud computing service applications such as cloud web disks,cloud music,cloud transportation,cloud education,etc.have long infiltrated our daily lives.It has a wide range of applications,huge development potential,and intensified industrial competition.The development of the cloud computing industry is inseparable from technological innovation,and technological innovation cannot be separated from patents,and fierce industrial competition may lead to infringement of cloud computing patents.There are two types of patents for cloud computing inventions: product and method patents.Due to the particularity of cloud computing method patents,the existing patent infringement determination rules in China are difficult to apply,so this article will focus on its method patent infringement determination rules.The two judgments of the XDJT case,which is a typical representative of the patent infringement case of the cloud computing method,are ambiguous in the application of the cloud computing method patent infringement determination rule,which proves that China's patent infringement determination rule is in trouble.At present,there are three types of rules in China's legal regulations applicable to such cases: traditional direct tort rules,common tort rules,indirect tort rules(divided into seduced tort rules and assisted tort rules).When determining a general patent infringement,the first is to determine the scope of protection of its rights;the second is to compare technical solutions.When a single subject performs all the actions described in the patent claims,it constitutes a patent infringement.However,due to the multi-agent step-by-step implementation characteristics of cloud computing method patents,compared with ordinary patent infringements,cloud computing method patent infringements have more complicated identification of infringing subjects,more difficult to define infringement liability,and separation of infringement steps.These characteristics make it difficult for China's existing infringement rules to be applied in judicial practice.When multiple infringers individually implemented some steps of the patentinvolved,although all method patent steps were implemented under the objective conditions of their interaction,this was caused by the principle of comprehensive coverage of a single subject by the direct infringement rules in China.Infringement of patents for cloud-like computing methods cannot be determined.At the same time,the Supreme People's Court's Interpretation of Certain Issues in the Application of Laws in the Trial of Patent Infringement Disputes(II),the indirect infringement determination rules finally established need to be based on the existence of direct infringement,and the common infringement rules are vague in application,which all make cloud computing The infringement liability of a patent cannot be accurately identified,and the legitimate interests of its patentee cannot be effectively protected.China's science and technology development started relatively late,and there are not many studies on cloud computing separation infringement.The United States,as the country of origin of cloud computing,has studied the cloud computing separation infringement rules from the initial "agent relationship" to the new master control rule established in the Akamai re-examination result.It has undergone a long development process,and the results are even more mature.Therefore,in order to improve the scientific and technological innovation capabilities of cloud computing technology and enable China's cloud computing industry to flourish,based on its relevant experience and research results,we can improve the cloud computing patents that are suitable for China's legal background and related industry development.Infringement rules.Therefore,this article proposes that China should introduce the new US master control rule without destroying the existing legal system,and put forward opinions and views on specific measures to improve the rule.