Research On Indirect Patent Infringement Of Specialty Products To Private Consumers

The amendment of the Patent Law stipulates the system of indirect infringement of patents,and establishes the regulation of assisting infringement and inducing infringement which has been widely discussed in the legal level.The draft amendment was adopted by the executive meeting of the State Council on December5,2018 to form the Draft Amendment of the Patent Law of the People's Republic of China(hereinafter referred to as the Draft).Although the Draft stipulates two forms of indirect infringement,both indirect infringement components require direct infringement as the premise,but if this one-size-fits-all legislation is not enough to protect the interests of patentees,such indirect infringement liabilities as upstream specialized product provision can not be investigated when the patent implementation of the terminal is carried out by ordinary consumers.For this reason,in judicial practice,most judgments do not actually determine whether the patent implementation of the terminal constitutes a direct infringement,that is,whether there exists a direct infringement,but directly determine that the defendant constitutes an indirect infringement of the patent when it meets the subjective requirements,the object of infringement and other constitutive requirements of the indirect infringement of the patent.However,there are also judgments that adhere to the one-size-fits-all legislation mentioned above.In the case that the terminal execution is carried out by ordinary consumers and other subjects,the defendant is also judged not to constituteindirect infringement on the grounds that "indirect infringement must be based on direct infringement while the plaintiff fails to prove the existence of direct infringement".This is unfair to patentees.This paper develops according to the logic of putting forward problems-analyzing problems-solving problems.The specific contents are as follows:The first chapter is about the legal status quo,existing problems and the necessity of solving the problem of providing products to ordinary consumers.Firstly,before describing the problem in detail,it briefly introduces the meaning and constituent elements of indirect tort.[Simple Supplement: What are the meanings and constituent elements respectively] This paper discusses the issue of whether ordinary consumers should insist on the premise of direct infringement even though they do not constitute direct infringement when they obtain products such as special products.In fact,it aims at the prerequisite of indirect infringement which is the prerequisite of direct infringement in the constituent elements of indirect infringement.Secondly,it introduces the current regulations and problems of our country's laws and regulations on this issue.At present,both the guidance of the local courts,the judicial interpretation of the Supreme Court and the draft adopted by the State Council stipulate that indirect infringement can only be constituted when "the infringement of patent rights is committed by others".The problem caused by this regulation is that,because the definition of direct infringement in China's patent law includes "for the purpose of production and operation",ordinary consumers without this purpose do not constitute direct infringement even if they have not licensed their patents.Under the circumstance that indirect infringement has not yet been stipulated in China,the impact of individual ordinary consumers on the interests of patentees is not significant and to individual ones.The special reasons for the high cost of common consumers' liability recovery have little impact on the patentee.But when our country begins to stipulate indirect infringement and stipulate that the premise of indirect infringement is direct infringement,the above-mentioned acts of ordinary consumersto implement patents do not constitute direct infringement,so the act of providing special products and other products to these ordinary consumers does not constitute indirect infringement.From the relationship between the indirect infringer and the patentee,it has a great impact on the patentee and is unfair.Thirdly,it is necessary to solve this problem.If we stick to laws and regulations,then the defendant should not be judged to constitute indirect infringement at this time.In fact,this judgment does exist in our country.But at the same time,because of the unfairness of such judgments,more judgments in judicial practice actually intentionally or unintentionally neglect this premise requirement.Direct judgment of the defendant constitutes indirect infringement,that is,this legislation leads to different judicial standards.In addition,the development of technology,which is the development of3 D printing technology,makes this inequity more serious.The second chapter is the analysis of the identification of the patent law which provides the ordinary consumers with the act of implementing patented products.Firstly,the theoretical development of this problem in China is introduced.The issue discussed in this paper can be said to be one aspect of the problem of "the relationship between these two kinds of infringements".Early discussions on this issue focused on the confrontation between "independence theory" and "subordination theory",and both sides had their own reasons.At present,there is a voice of compromise,that is,"indirect infringement is premised on direct infringement,but there are exceptions".Secondly,it makes a comparative study of international legislation on this issue.For this problem,indirect tort liability is generally pursued in the international community:whether in the United States or Germany or other European countries,according to legislation,it is clear that when the end-use of patents is carried out by ordinary consumers,the upstream supply of products such as special products should still be investigated;the mainstream doctrine and judicial practice of Japan are the same.Chapter three puts forward some suggestions on how to regulate the indirect tort liability of ordinary consumers in the case of patent application.Firstly,an exceptionshould be added to the existing indirect infringement system in legislation,which stipulates that "when the subject of patent application is a non-ordinary consumer for the purpose of production and operation,it is regarded as an infringement of patent rights." Secondly,before the legislation is clear about this point,we can adopt the method of restrictive interpretation to regulate such acts.The patent enforcement behavior of ordinary consumers is also interpreted as "for the purpose of production and operation".Finally,there is a view that the requirement of "for the purpose of production and operation" of direct infringement in China's patent law should be abolished.This view is too radical.