On The Determination Standard Of Divided Infringement Of Method Patents Without Joint Intent

Divided infringement of method patents refers to the form of patent infringement that two or more subjects separately implement part of the steps of a method patent,while none of the subjects independently implement all the patent steps,and the conducts of all subjects combined constitute complete patent steps.The divided infringement of method patents has appeared in judicial practice of China.There is no problem with divided infringement of method patents with joint intent,while the judicial practice shows the problem of unclear nature and determination standard of divided infringement of method patents without joint intent.In view of the nature of divided infringement of method patents without joint intent,it should be direct patent infringement.On the one hand,it does not meet the constituent elements of indirect patent infringement and the joint infringement with multiple causes and one effect.It is also incompatible with their institutional function,and the overexpansion of the scope does not conform to the principle of balance of interests.Therefore,it is not indirect patent infringement or the joint infringement with multiple causes and one effect.On the other hand,the performances of its conduct,which comply with full coverage principle,are consistent with direct patent infringement.Identifying it as direct patent infringement can maintain the stability of the existing patent system and avoid the difficulty of applying joint and proportional liability under specific circumstances.Therefore,it should be direct patent infringement.On the issue of the determination standard of divided infringement of method patents without joint intent,applying "control or direct" standard with clear implication is appropriate.After comparing opinions in domestic and foreign practice and theory,on the one hand,by summarizing judicial practices in the United States and considering the elements of infringement in China,the implication of "control or direct" standard can be clarified as below.Anticipating that others will enforce specific patent steps,the accused infringer has implemented the act of controlling or directing others,resulting in other subjects not having the right to choose whether to implement specific patent steps.The clear implication solves the problem of clarity of the "control or direct" standard itself.On the other hand,there are obvious institutional advantages of its application in China.It solves the problem of illegality and party attributability of divided infringement without joint intent,reasonably limits the scope of patent infringement,and has the feasibility of application in China.To provide clearer guidance for the application of the "control or direct" standard,in terms of the performances of“control or direct”,it can be mainly divided into "agency relationship and statutory vicarious liability relationship" and "contractual relationship".The former can be directly judged based on the express provisions of the law.As for the latter,it needs to determine with express or implied compulsory contractual obligations to determine whether "control or direct" is satisfied,and in specific judicial practice,the contractual relationship between different subjects can be determined differently based on the degree of the subjects’ cognition.