The Research On The Judgmental Rule Of Divided Infringement Of Multi-step Method Patent

Divided Patentis composed of a series of steps or methods of operation,often requiring multiple parties to participate in the implementation.Especially in interactive network applications,network operators often implement multiple steps,leaving the remaining individual steps to the consumer.Because consumers do not have business purposes,this usually leads to direct infringement judgment can not or difficult.However,on the other hand,the steps or methods of operation in the patent claims have been fully implemented,and the market interests of the patentee have been or will be damaged.In the early development of patent system,the research on patent infringement mainly focused on the regulation of Direct infringement.However,with the development of patent system,only investigating the liability of Direct infringer can not give full protection to the patentee in some cases,and there are still some cases where Direct infringement can not be identified or difficult to do.Investigate the liability ofIndirect infringers.In the face of this situation,the main patent developed countries have established Indirect infringement rules and combined with the patent judicial public policies of various countries to flexibly adjust the scope of application of Indirect infringement,so that the interests of the patentee has been morecomprehensive protection.In December 2015,China promulgated the "Draft Amendment of the Patent Law(Draft for Consultation)"(2015).Article 62 stipulates the Indirect infringement of patents,which is a major adjustment to the patent system.This article is written at the critical moment of the fourth amendment of the Patent Law.Therefore,the application of Joint infringement and Indirect infringement is discussed in the light of the value of the patent system balancing the interests of patentees and the public,combined with Divided Patent determination.The first chapter of this article mainly analyzes and compares the rules and clauses of Divided infringement judgment at present stage in China,and finds out the problems: China's patent law has not yet established a Joint infringement system,for Divided infringement judgment to adopt the relevant provisions of the Tort Liability Law,but It is unfair to judge the main body of uninterested contacts and bear joint liability.For the tortfeasor who instigates or helps,when other tortfeasors commit infringement,they shall jointly bear joint and several liability.If the instigation and assistance act has been carried out,but other acts have not fully implemented the steps of patent rights,there is insufficient legislation to determine whether the instigation and assistance act should be liable.In the second chapter of this paper,we use the method of historical analysis and comparative analysis to sort out the applicable cases and legislation of the extraterritorial Indirect infringement rules.This paper mainly introduces the criteria used in American cases to determine the relationship between multi-party participants,and points out that the current "Control and command" criteria are too harsh to apply,which leads to the problem that is not conducive to the protection of the interests of patentees.In addition,it also compares the legislation of Indirect infringement in Germany,Japan and South Korea.For the third chapter whether China will introduce Indirect infringement system to pave the way.The third chapter starts from the relationship between Joint tort and Indirect infringement,and clarifies the relationship between them.It also advocates thatIndirect infringement should not be judged on the premise of the establishment of Direct infringement,and the viewpoint of " The theory of independence " of Indirect infringement should be adopted.Distinguishing the subjective faults of the participants in Divided infringement,the rules of Joint infringement and unintentional liaison are adopted to determine the infringement.Based on the theory of " The theory of independence" of Indirect infringement,the indirect infringement rules are still applicable to the tortfeasor's liability for instigating,luring and helping the tortfeasor to identify the Direct infringement of other actors when it is impossible or difficult.