| All-element rule is the principle for the finding of patent infringement,and in judicial practice the so-called single-entity rule is also applied.With the development of science and technology and interactive characteristics of internet and communication fields,there are often two or more parties involved in one task.However,in China,the infringement of method patents means that one party implements all steps in the claims of the patented method with commercial purpose,thus the conflict occurs.If relative situations could not be regarded as infringemeny,it will not only damage the legitimate interests of the right holders,but also affect the innovation of the whole society,since there would lack motivation for inventors to do further R & D activities.The first chapter analyzes the current dilemma China faced for the finding of infringement in cases that multiparty involved in the implementation of a method patent.First of all,under the all-element rule and single-entity rule,no one’s actions constitute direct patent infringement since no one actually implement the whole method patents.Secondly,the application of the contributory and inducing infringement rule is limited by the prerequisite of the finding of direct infringement.In addition,the joint infringement theory is also ineffective,since there always have no cooperative intention between parties.The second chapter analyzes different approaches dealing with this problem in the foreign countries.First,there is no much effect to use indirect patent infringement system in current situation,since it is too limited.Second,the direct infringement rule is still shinning,especially the rule developed by the United States called "directs and controls" standard,German and Japanese courts have used similar reasonings in practice.Third,the joint infringement rule could still make sense,the “joint enterprise rule” developed by the U.S.is a good example.Since China has similar patent protection situation,"direct and control" standards would be more suitable than other approaches for China to learn from.The third chapter shows the justification for China to apply a rule similar with the "directs and controls" standard.First,it does not destroy the all-elements rule,but update the meaning of single-entity rule.Second,vicarious liability could be the theoretical basis in China.Third,this rule could provide supplements to current chinese tort law system,and to some extent also show the inclination of Chinese judges.The forth chapter attempts to solve the current dilemma in China.First,some definition,such as the way to distinguish different actors and the meaning of “use”,is clarified.Second,the requirements of applying the "directs and controls" standard are designed.Third,the harmonization of different infringement rules including joint infringement and indirect infringement is arranged for the building of a well-established patent protection system. |
