Research On Constitutive Elements Of Contributory Type Of Patent Indirect Infringement

Patent infringement can be divided into direct infringement and indirect infringement.The principle of determining direct infringement is all elements rule.The scope of the patent right is defined by the claims submitted by the patentee,and all elements rule means that when the alleged infringing product or method contains all the technical features or steps described in the claim,it can be determined that the product constitutes direct infringement.However,with the development of modern technology,some actors only provide part of the components that constitute the patented invention,and the remaining components or step is left to the buyer to implement,in order to avoid direct infringement.If this behavior is not stopped,it will inevitably hit the inventor’s motivation for innovation.Therefore,led by the United States,various countries have established indirect infringement systems to regulate such acts that avoid direct infringement.On March 21,2016,the Supreme People’s Court of China issued the The Interpretation(II)of the Supreme People’s Court on Several Issues concerning the Application of Law in the Trial of Patent Infringement Dispute Cases,of which Article 21 specifically provides for patent indirect infringement.It can be seen from the provisions that the legislative model chosen by our country is very similar to that of the United States,which provides for the provision of special products to contributory infringement and induce infringement.However,in the infringement ofthe contributory infringement of special product type,there are no requirements for "nonstaple article" and "material part of the invention" as in Article 271(c)of the United States.Therefore,some scholars believe that our country should follow the practice of the United States and further limit the requirements for special products to meet the "material part of the invention" requirement.Some scholars have suggested that the practice of Japan should be followed,and the concept of non-generic products should be introduced,and a provision for indirect infringement of non-exclusive products should be established in the provisions.In addition,the academic circles’ disputes over the independent and subordinate theory of patent indirect infringement and subjective requirements have not disappeared as a result.This paper believes that just as the core of direct patent infringement is to determine whether the alleged infringing product meets all elements rule,the core of patent indirect infringement should also focus on the analysis of special products.First,whether the alleged infringing product is a special product should be judged from the perspective of economic benefits for substantial noninfringing use.Secondly,starting from the purpose of incentive theory,only special products that satisfy the material part of the invention are worthy of legal protection.Due to the strict restrictions on special products mentioned above,the threshold should be appropriately lowered in terms of the liability attribution.The rule of negligence presumption can better protect the rights of patentees.Finally,in the controversy over whether direct infringement is necessary,this article argues that the indirect infringement of special-purpose products will not affect the public interest even if the independent theory is adopted,because its value is entirely created by the patentee.Regarding the question of whether to introduce indirect infringement of non-exclusive products,this author analyzes two types after the judgment of Japan and the United States: the first type,such as the software sold by the defendant in the Japanese taro case,which contains special products that can be easily separated.In this case,the problem can be solved by flexible application of the special product type.The second type is that the alleged infringing product itself does have multiple uses.In this case,Japan’s attempt to introduce the concept of non generic products between general products and specialproducts does not help in the judgment of whether it constitutes an indirect infringement of patent itself.Ultimately,it should be determined by the subjective intention of the parties and the objective behavior reflecting the subjective intention.Then this way of determination It is the same as the second paragraph of Article 21 of the second judicial interpretation of China,so it is not necessary to introduce the non special product type to help the infringement.