Analysis Of The Divided Infringement

The divided infringement means that multiple implementers have implemented parts of the steps of a method patent without the permission of the patentee,and that the combination of the parts of the steps implemented by each implementer covers all the technical features of the method patent,but there is no single implementer who has implemented all the technical features of the method patent.Due to the plural nature of the implementer,this type of infringement is more complex than ordinary patent infringement,and if the existing comprehensive coverage principle is strictly applied,each implementer only implements a partial step,which is not enough to find direct infringement,and the infringer can avoid infringement liability by simply handing over some steps of the method patent to other implementers for implementation;at the same time,indirect infringement is implementer to the existence of direct infringement,and indirect infringement is not regulated by law.Method patents have been objectively fully implemented,but due to the failure of the traditional infringement determination rules,the patent has become a dead letter and the legitimate rights and interests of the right holder are not effectively protected,therefore,it is necessary to study the divided infringement.In this paper,the typical case of the Western Electric Power Company(WEPCO)has brought out the problems of the traditional infringement determination rules,and studied the method patent infringement cases and rules of multiple implementers in the United States,and concluded that the three determination paths include thedetermination path of direct infringement-control or direct standard,the determination path of indirect infringement-inducement only rule,and other determination paths-the last step principle.This paper is divided into three main parts.The first part raises the question,pointing out the dilemma of the divided infringement in China.For the divided infringement,the traditional rules of infringement determination is difficult to regulate,at present,generally adopt two regulatory thinking,one is to direct infringement regulation,but because the principle of comprehensive coverage requires a implementer to comprehensive coverage of the complete implementation of the method patent of all technical solutions,while the divided infringement does not exist,each implementer has only implemented a partial step,not enough to find direct infringement,the right holder generally can only choose to sue the infringer in the research and development,testing stage as a single implementer to fully implement the technical solutions;the second is to indirect infringement regulation,although each implementer has only implemented a partial step and does not constitute direct infringement,but it seems that the implementation of partial steps in line with the characteristics of indirect infringement,but the establishment of indirect infringement in China is implementer to the existence of direct infringement,the implementation of partial steps also does not constitute indirect infringement.In the second part,a comparative analysis of the divided infringement is conducted.The Court of Second Instance in the West Dentsu case mentioned in its judgment that "there is no question of one implementer controlling or directing some of the steps of other implementers to implement the method patent in question",which in fact provided a new idea or inspiration for the method patent infringement judgment of multiple implementers,although the Court of Second Instance in the case did not discuss this in detail,but it can be seen that the control or direction standard in the United States separate infringement judgment was influenced to some extent.After studying the adjudication rules of similar cases in foreign countries such as the United States,Germany,Japan and so on,this paper proposes to use the relevant rulesor theories of the United States as the object of comparative analysis for the following reasons: first,the adjudication rules of method patent infringement of many implementers in the United States have been developed for a longer period of time than those of Germany and Japan,and the cases are richer and the rules are more perfect;second,the theoretical community in China mostly uses the adjudication rules of the United States as the reference or comparison object,and the court of second instance in the Western Electricity Jitong case has already mentioned the control or direct standard of the United States;third,the relevant system or theory of indirect patent infringement originated in the United States,and the recent Sino-US trade agreement has special provisions on patents,so the patent rules of China and the United States will be closer.In the United States,there are mainly direct infringement determination paths-control or direct standards,indirect infringement determination paths-the only theory of inducement,other determination paths-the last step of the principle,this paper will comb the above standards,theories and principles,and make a comparative analysis based on our existing laws and regulations and the applicable basis,and explore whether China can learn from and apply.The third part solves the problem and makes recommendations on the rules for the divided infringement in our country,which is the main body of implementation.Based on the second part of the comparative analysis,this paper makes three suggestions: First,to clarify that the divided infringement,ordinary users are generally not the implementers,and to define the implementers by the subject matter of method patent claims.Second it should be interpreted as a single implementer for claims that are not properly drafted,and should not be interpreted as claims that are authorized only after the interaction of different steps performed by multiple implementers and the inclusion of steps performed by other implementers as a limitation.Third,to introduce control or direct standards and clarify the constituent elements,control or direct standards,compared with the practice of aiding and abetting infringement by breaking the "indirect infringement to establish direct infringement",is a moderate expansion of the original legal framework under the direct infringement determination rules,has an applicable basis,can meet the interestsof the patentee and the public balance,while clarifying its constituent elements,so that different cases can adopt the same determination standards.