On The Preservation And Abolition Of Article 11 Of The "Patent Law" "for The Purpose Of Production And Operation"

The constituent elements of patent infringement are regulated in Article 11 of the Patent Law,in which “for production or business purposes” is the subjective element of patent infringement.However,due to the lack of legislation,the connotation and extension of “for production or business purposes” have not been reasonably explained.Although the State Intellectual Property Office and some higher people's courts have made efforts,there are differences in the interpretation of “for production or business purposes”,which leads to a completely different attitude of judges towards such cases in judicial trials.In the theoretical circle,although many scholars have conducted research on this issue,most of them are discussing specific practical issues.This article makes a comprehensive analysis of “for production or business purposes” by examining the legislative origins of the Patent Law,judicial practice viewpoints,and related legislation outside the territory,combined with the existing discussions in the theoretical circle and the legal and philosophical basis of intellectual property law.It is believed that the expression “for production or business purposes” as a limitation of patent rights cannot be clearly defined,which will lead to endless contradictions and should be deleted.After it is deleted,attention should be paid to the balance between private and public interests,and the principle of balance of interests should be used rationally to play a role in the bottom line when specific legislation is missing.In the patent infringement defense link,a defense exception is specifically formulated to replace “for production or business purposes”.It is believed that personal behavior should not be interpreted as restrictive.As long as the personal behavior does not circulate the infringing patent product(including resale and gift),the law should be obtained.For scientific research and experimental behavior should include both experimental and commercial purposes.The key point of judgment is whether the experiment is loyal to science and technology itself,whether it is for deeper exploration of scientific knowledge or to verify a certain One science and technology.The consumption behavior of an enterprise cannot be distinguished from the business behavior,and there is no need to distinguish it,because the behavior of an enterprise should be judged from a macro perspective,as long as it can promote operation,it should be regarded as “for production or business purposes”.The concept of “purely for public service,public welfare and charity” put forward in theoretical circles and judicial practice is a negative exclusion interpretation in the face of the inability to define “for production or business purposes”,but this kind of interpretation is unnecessary.For the judgment of the purpose of public interest,it is only necessary to pass element analysis and comprehensive analysis of specific cases,and there is no need to branch out too many concepts to further hinder the definition of patent infringement restrictions.