Study On Specially Used Product Of Patent Contributory Infringement

In order to protect the social and economic value of the patent system and make up for the deficiency brought by the traditional patent infringement theory,the patent contributory infringement system emerged.How to reasonably define specially used product is one of the most complicated problems in the academic fields in the process of consummating the patent contributory infringement system,and it is also the most controversial issue in the judicial trial of patent infringement disputes.Therefore,it is of great theoretical and practical significance to deeply study and analyze the specially used product.Interpretation by the Supreme Court on Some Issues Concerning the Application of Laws to the Trial of Patent Infringement Disputes(II)clearly defines the provision of contributory infringement behavior by providing "specially used product" to be restricted,but the extremely indistinct definition for the "specially used products" inevitably caused many troubles in the judicial practice.This paper has three parts.This first chapter is about the disputes and problems of specially used product.This chapter is to sort out the concepts related to specially used product,and the development and regulation thereof,and focuses on summarizing and clarifying the theoretical and practical problems that exist about the specially used product,including the question about the rationality of the specially used product,the misreading of the expression of the specially used product and the problems of the identification of specially used product in judicial practice.The second chapter is the study of the rationality of specially used product and the analysis of characteristics.In view of the controversy that whether patent contributory infringement theory will lead to the unreasonable expansion of patent protection scope or not,the author analyzes the rationality of specially used product from the perspective of legislative purpose and public interest.The inevitable result of the continuous development of science and technology must make a unlimited space for technological improvement for solving the same technology problem,and the public can win the market competition position by creatively avoiding design or paying license fees,so it will not fundamentally restrict or restrict the interests of the public.As for the reasonableness of the application of the principle of patent infringement judging,the author believes that although the specially used product has only or equivalent to some of the technical features of the scope of patent protection,but for those features which are not reflected is not superfluous,and will certainly appear in the item which completely implements the patented technology,and ultimately still in line with the principle of comprehensive coverage,meanwhile,it does not result in the disguised application of the principle of redundant designation.Due to the influence of similar qualifiers such as "specifically use for" in relation to specially used product,the phenomenon of mechanical application of such qualifiers to classify corresponding items into the category of specially used product occurs from time to time.Based on the theoretical logic of patent indirect infringement and the idea of patent infringement judging,this paper focuses on combing and analyzing the basic characteristics of specially used product,so as to identify the misreading of specially used product based on inertial thinking and straighten out the expression of specially used product.The three basic characteristics that the specially used product should possess are the comparable scope of patent protection,some same or equivalent technical features in the scope of patent protection,and no use value that is independent of the patented technology.According to the basic patent infringement judging method,it can be seen that if the item is completely not comparable to the technical solution corresponding to the scope of patent protection,the item may not constitute a specially used product within the framework of patent contributory infringement theory.The possibility of judging the patent indirect infringement or the patent contributory infringement arises only if the technical solution embodied in the item has or is equivalent to some of the technical features recorded in the claim.When an item has a use value which is independent from the patented technology,the disguised application of the principle of redundant designation will result if the judgment on whether to establish an indirect patent infringement is continued.The third chapter is a study of the identification criteria of specially used product.Because there is no clear legal basis,most of the courts has invoked the Tort Liability Law,the General Principles of Civil Law to solve the problem of the identification of specially used product,inevitably there is a problem of different criteria.There are five main situations:(1)based on the principle of comprehensive coverage,without taking into consideration of patent indirect infringement;(2)mainly focus on the judgement of "specifically use for",which is a common feature of most cases;(3)without considering the use of defendant's products,just focus on the judgement of whether of not the item is an essential component;(4)consider the specificity and technical criticality of the defendant's products;(5)do not judge whether it is "specially used product" or whether it constitutes a critical part of the claim.The local courts also have different interpretations about Article 21.1 of the patent judicial interpretation(II).Through horizontal comparison,this paper analyzes the existing relevant provisions,and divides the existing identification criteria into three categories,namely,the identification criteria based on the use,the identification criteria based on the technical and the comprehensive identification criteria based on the use and technology.The identification criteria based on the use is to establish the correlation between the partial implementation of the patented technology and the complete patented technology from the perspective of the use,which is the most direct and simplest way.The standard that the unique use of items,which implemented part of patented technology,only point to the complete implementation of patented technology are too strict and absolute,in the long-term judicial practice,countries have gradually summarized or clearly defined the special qualification conditions of the "use",which can be called the identification criteria of the relative unique use.At present,Japan and China clearly adopt the identification of the relative only use in the laws and regulations,its common ground lies in emphasizing the objective "specificity" of the object of the behavior,can be called "objective specially used products." However,this identification criteria neglects the technical correlation between specially used product and patented products or patented methods and lacks rationality.The identification criteria based on technical attributes mainly focuses on the relationship between specially used product and patented technology,and the criteria is adopted by both Germany and Japan about the objective contributory infringement.The main judgement point of the German Federal Supreme Court with regard to the specially used product is the word "relevant" or "involved",and if the object of the act,by acting in conjunction with other elements,can contribute to the resolution of the technical problem,it is considered that the object of the act conforms to the constituent elements related to the main elements of the invention.According to Japan's subjective contributory infringement,the object of contributory infringement covers items,which are involved in the manufacture of patented products and the process of the use of patented methods,from the "necessary to solve the invention problem" point of view.German patent law and Japanese patent law on the surface does not limit the specially used product to the "objective specially used product",but the author believes that the subjective requirements in the above-mentioned law are also reflected in essence the requirements of the objective unique use,the corresponding object of the act can be called "virtual specially used products." In the author's opinion,in the corresponding jurisprudence of Germany and Japan,the established relationship between the identified specially used product and the patented technology is not a simple correlation,but a "chain relationship" established through one or two intermediate links,which is equivalent to the reconstruction and interpretation of the scope of patent protection centered on the technical conception.It obviously weakens the definition function of the claims for the scope of patent protection.The comprehensive identification criteria based on use and technology takes the use of the item and the correlation between the technology and the patented technology embodied in the article into account when the identification of a specially used product is carried out.At present,the comprehensive identification criteria is applied by the United States and Guidelines for Patent Infringement Determination(2017)issued by Beijing Higher People's Court.The requirement of that item has no "substantial non-infringing use" reflects "objective unique use" and the rule require the perpetrator to have a subjective fault,i.e.,knowing that the product in question is dedicated to the implementation of the patented technology.The incompleteness of the existing identification criteria is embodied in the omission of the items which have both "technical essential " and "virtual use uniqueness" because the perpetrators have known or shall know,and the kind of items is equally subject to regulatory necessity and rationality.Through comparative analysis,this paper agrees with and supports the "comprehensive identification criteria",that the identification criteria of specially use product should reflects the technical essential and the use uniqueness,in which the technical essential is used to reflect the rationality of legal regulation on the contributory infringement behavior,and the use uniqueness to reflect the necessity of legal regulation on the contributory infringement behavior.For the technical essential,this specially used product should have an indispensable and substantial role in realizing the protected solution defined by the patent claim.For the use uniqueness,specially used product should cover items with objective unique use and items with virtual unique use.It is suggested that when perfecting the relevant laws and judicial interpretations of patent contributory infringement,with respect to the objective use uniqueness,referring to the relevant provisions of Japan and the United States,the objective unique use should be considered as substantive non-infringement use from the perspective of commercial and economic cost.For the virtual unique use,it should be defined as "has known or shall know that the article will be used to implement the patented technology" by reference to Germany and the subjective contributory infringement of Japan.As a country with statute laws,the legal provisions and related provisions are accurate and have good operability,which is of great significance for the re-emergence of the balance of interests in specific social life,and the patentee and the public can clearly determine the boundary of patent rights through the above-mentioned clear and accurate laws and regulations,and at the same time,when disputes arise,the judicial system can also apply uniform rules to maintain and improve the authority of law and justice,protect the interests of patentees to the maximum extent,encourage invention and innovation,and ensure the healthy development of social and economic order.Due to the limitations brought by the lack of knowledge reserve and the lack of comprehensive ability,the point of view of this paper may be immature,but I still hope that we can arouse more attention and discussion,contribute to the perfection and development of china's patent contributory infringement theory.And in the future work and study,continue to strengthen the relevant knowledge reserves,improve academic ability.