The Research On The Judgement Of Divided Infringement Of Method Patents Involving Computer Programs

Divided infringement of the method patent involving computer programs is a matter of multiple parties participating in the infringement of one patent,since no subject has substantially taken all the steps in the method claim,and there is no traditional direct infringement or indirect infringement.However,if the products manufactured by the alleged infringing party for the purpose of production and operation contain all "combination of special functional modules" necessary for the implementation of the patented process,it shall be determined that the alleged infringing party's direct patent infringement is available.The application of any doctrine of joint infringement to the determination of such infringement would result in the failure of reasonable relief of the patentee or the involvement of the innocent party in the infringement.The determination of joint infringement in such cases can be based on the United States "joint venture" standard.In addition,indirect infringement,abetting infringement and contributory infringement are different in the form of formation and the manner in which liability is borne.Furthermore,under the development of technology,even if the induced or aided party has only taken some steps in the process of the implementation of method patent,the indirect infringement can substantially promote the implementation of each step and result in the infringement of patent right,so it should be permitted to reasonably judge the the indirect infringement in these cases.We suggest our country amend Article 21 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Patent Infringement Dispute Cases(II)as follows: "Where a patentee claims that the supplier's act constitutes an act of assisting others in committing infringement as specified in Article 9 of the Tort Law,the people's court shall support such claim" in the first paragraph and "where a right holder claims that the inducer's act constitutes the act of abetting others in committing infringement as specified in Article 9 of the Tort Law,the people's court shall support such claim" in the second paragraph shall be amended to "it's indirect patent infringement",and a third paragraph shall be added,"If others in the aforesaid two paragraphs commit acts that are not deemed as patent infringement under Article 69 of the current Patent Law or that are not for the purpose of production and operation,the judgement of indirect patent infringement shall not be affected".Meanwhile,it is suggested that the criteria for direct infringement dominated by "combination of specialized functional modules",the criteria for joint infringement of patents by "joint ventures",and the criteria for indirect infringement in the process of exploitation of "one touch is done" apply to the determination of divided infringement of method patents involving computer programs in judicial practice in China.