Study Of Legal System Of Patent Indirect Infringement

On one hand,the patent system encourages innovation by giving the patentee the exclusive right to implement its invention,while restraining the implementation of the patent right to avoid the abuse of patent rights and balance the interests between the patentee and the public.The general infringement theory determines whether a patent is infringed based on the All-Element principle.In short,whoever must implement the entire technical solution of a patent constitutes patent infringement.However,the general infringement theory has certain defects,and it cannot solve all the contradictions between the patentee and other interested parties.Specifically,for those who do not implement patented technology,but help or induce others to implement the patent,the contributory and inducing activities have damaged the interests of the patentee,but they cannot be regulated by the conventional infringement rules.This is the origin of the establishment of the indirect patent infringement theory,which together with the general direct infringement theory constitutes a relatively complete legal system of patent infringement.Compared with the United States,Japan and other countries,China’s legislation on indirect infringement is relatively late,and it was not until 2016 that legal provisions for patent indirect infringement were introduced through judicialinterpretation.The reason is that on the one hand,China’s patent system started relatively late,and the first case associated with indirect patent infringement did not appear until 1993.On the other hand,in the process of the previous two revisions of patent law,for special reasons,we finally gave up the legislation of the indirect patent Infringement.Correspondingly,due to the lack of legislation and real cases,the theoretical research on the indirect patent infringement system is relatively insufficient.This paper analyzes the theory and the real cases,and discusses the nature and the constituent elements of indirect patent infringement.The first chapter introduces the meaning of patent indirect infringement,and specifically focuses on the two types of infringement “contributory infringement” and “inducing infringement” as stipulated in the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Cases(II).After that,this article reviews our legislative and judicial history relating to indirect patent infringement.The second chapter analyzes the nature and constituent elements of indirect infringement in combination with theory and cases.In the choice of legislative model,we support the model adopted in the judicial interpretation in 2016 that includes the controversial inducing infringement in the scope of indirect infringement.On the issue of the relationship between indirect infringement and joint infringement,after analyzing the general commonality of joint infringement and the particularity of patent indirect infringement,and especially considering the limitation of the joint infringement theory of the civil law on the application of patent indirect infringement,we believe that indirect infringement shall constitute a separate tort liability independent of joint infringement and the infringers shall not share joint liability with others.On another controversial issue that whether the existence of direct infringement is the premise of indirect infringement,we believe that direct infringement basically can be used as a premise of indirect infringement,while it should be understood flexibly.Especially in the case that only the ordinary individuals carry out the patents,it should be understood as “implementation ofpatents” rather than “patent infringement”.In addition,this paper proposes to introduce “control or guidance” rules to directly regulate the contributory and inducing activities that meet certain requirements under the rule of direct infringement.On the subjective requirements of indirect infringement,the term“knowing” used by the current legislation should be understood as including intentionality and negligence.On the objective requirements,in addition to the infringement of “specialized products”,we propose to include the regulation of“non-specialized products”-type infringement so as to enlarge the coverage of indirect infringement.Based on the previous analysis,the third chapter of this paper gives the author’s own opinions on the indirect infringement legislation and judicial practice.On the one hand,it provides some ideas and materials for the study of theory and practice of the indirect infringement,and on the other hand,it also expresses certain expectations for future legislation and justice.