Research On Infringement Of Providing Special Products For Method Patents

In the current patent system of China,method patent infringement can be divided into direct infringement and indirect infringement.Direct infringement includes the use of patented methods and the subsequent use of products directly obtained according to patented methods;Indirect infringement includes aiding infringement and abetting infringement.The direct infringement judgment rule based on the principle of comprehensive coverage and the indirect infringement judgment rule based on the premise of the establishment of direct infringement constitute the method patent protection system.However,with the development of technology,there are some behaviors that lead to the damage of the interests of the patentee,but it is difficult to apply the current patent infringement system to regulate it.One of the typical behaviors is the behavior of providing special products for method patent discussed in this paper.According to the principle of full coverage,the provider only provides products for implementing the method patent,but does not implement any step of the method patent,which obviously does not constitute direct infringement;Ordinary users do not have the purpose of production and operation.Although they fully implement the steps in the patented method,they do not constitute direct infringement of the method patent,so it is difficult to investigate the indirect infringement liability of the provider.The joint tort system under the civil law can not effectively regulate the act.In judicial practice,there are different standards for identifying the act as direct tort or indirect tort or not constituting tort.In view of the continuous development of technology,it is reasonable to believe that the number of such cases will continue to increase.If this behavior is not regulated uniformly and effectively,the interests of the patentee will suffer serious losses.It is necessary to provide the research on the special conduct of method patent for infringement judgment.This thesis includes four parts:Firstly,the first part of this paper clearly points out the Judicial Dilemma of providing special conduct for method patent as infringement judgment in China,that is,the accountability of behavior conflicts with the difficulty of infringement judgment.On the one hand,in the case that the provider provides special products for method patents so that ordinary users can fully implement method patents,although ordinary users do not have the "purpose of production and operation",in the case that a large number of ordinary users can fully implement method patents,the substantive substitution of the patent has been generated in essence,and the provider has seized the market interests originally belonging to the patentee with the help of special products.As a result,the patentee’s R&D investment for technological innovation can not get the due return,and the interests of the patentee have been damaged.On the other hand,there is a Judicial Dilemma in providing special conduct for method patent for infringement judgment.The provider has not implemented any step in the method patent,so it is difficult to apply the rule of patent direct infringement to regulate the behavior.Because ordinary users lack "for the purpose of production and operation" in the process of implementing method patents,which does not constitute direct infringement,it is difficult to apply the current indirect infringement judgment system to investigate the responsibility of suppliers.The joint tort system under civil law can not effectively regulate this behavior.The second part mainly introduces the main system choice and specific legal rules of extraterritorial regulation of the provision of method patent products.Through the study of the patent legal system and relevant cases of foreign countries with relatively perfect patent system,it can be found that the provision of special products for method patents is mainly regulated by the indirect infringement system,but the legal provisions of the patent indirect infringement system of each country are different,and there are differences in the subjective and objective elements when investigating the supplier’s indirect infringement liability.This paper takes the United States,Japan and Germany as the main research objects.Based on the comparative analysis of the patent indirect infringement systems of the above countries,this paper summarizes the methods of providing extraterritorial solutions.The patent special conduct is the infringement judgment method: the United States will investigate the supplier’s indirect infringement liability on the basis of determining the establishment of direct infringement,while Japan and Germany will investigate the supplier’s indirect infringement liability independent of direct infringement.The third part discusses the institutional choice of regulating the provision of special products for method patents in China.This paper holds that it is not suitable to apply the judgment rules of patent direct infringement,but more suitable to apply the judgment rules of patent indirect infringement to regulate the provision of special products for method patents.The reason for the former is that judicial practice has made many attempts to regulate the provision of special products for method patents,mainly by expanding or interpreting some certain elements of direct patent infringement to investigate the direct infringement liability of the provider.Specifically,it is usually expanded to explain the meaning of "use",modified to explain the meaning of " purpose of production and operation",or it is presumed that the supplier needs to test when manufacturing special products,and the method patent will be used in the test process.However,there are some problems in the above methods: first,the "use" of expanded interpretation is easy to cause the ambiguity of its meaning boundary.Second,the interpretation of " purpose of production and operation" is easy to lead to the confusion of trial rules.Third,the presumption of "test use" is not enough to fully protect the patent right.Since this behavior is more in line with the behavior mode and legal basis of indirect infringement,and the institutional choice of regulating the behavior of providing special products for method patents in China should be consistent with international regulations and international practices,it is more appropriate to apply the judgment rules of patent indirect infringement to regulate this behavior.The fourth part discusses the rules and suggestions to regulate the provision of special products for method patents.When applying the patent indirect infringement system to regulate the provision of special products for method patents,the constituent element of "purpose of production and operation" in direct infringement should not be deleted.It is suggested to establish a special case of patent indirect infringement independent of direct infringement,and take the case that does not constitute direct infringement due to the special provisions of the patent law as an exception.When investigating the supplier’s indirect infringement liability,the supplier’s behavior should meet the constituent elements of indirect infringement,that is,subjectively in the psychological state of "intention",and objectively provide the special products of method patent.In addition,it is suggested to appropriately expand the scope of "special products".We can learn from the legislative provisions of German Patent Law on indirect infringement and define special products as products related to the main elements of the invention,and exclude products that have been widely circulated in the market,so as to realize the protection of patent rights.