On The Determination Standard Of Patent Divided Infringement

“Divided performance” means that the process figures contained in a method patent are partially performed by multiple actors,each of whom does not fully perform the patent alone,and the “all-elements rule” can only be met after summing up their performance.Should divided performance of patent be determined as infringement? Judging by simply applying the current legislation,“divided performance” can neither satisfy the requirements of all-elements rule,nor satisfy any of the existing rules involving the determination of multi-actor tort liability,such as joint tort or indirect infringement.The answer seems to be that it is not deemed as infringement by the current law.To maintain the patent system,to promote the purpose of technological innovation,it is necessary to regulate divided infringement.The focus of the problem should be on how to scientifically build the determination standard.Infringement determined on the base of divided performance is called divided infringement.In terms of the determination standard of divided infringement,the existing approaches can be roughly divided into four categories: vicarious liability approach,indirect tort liability approach,joint tort approach and other approaches.The vicarious liability approach contains five specific situations,including“agent” “some connection” “direct or control” “attributable” “condition upon” has formed that will hold one actor responsible.But vicarious liability is not a good solution to solve the problem.The reason lies in that the vicarious liability principle transfers established tort liability based on the specific relationship between multiple entities.However,the difficulty of patent divided infringement lies in whether the tort liability is established.When whether the liability is established has not been determined,to directly apply the principle of liability transfer seems to put the cart before the wheel.The situation of patent divided infringement is difficult to meet the specific relationship required by vicarious liability.Excessive application of vicarious liability will also make indirect tort system empty.The second type that has been explored is the application of indirect tort doctrine,including the “inducement only” rule,“supply infringement” and “procured infringement”,and the application of the common law of contributory infringement principle.But none of them could get along with the rule of “indirect infringement is established on the premise of direct infringement”,thus cannot be adopted as a reasonable standard.There are some other approaches trying to hold the “culprit” responsible,including the judicial practice in China,the “last step” rule put forward by American judges,and causal liability discussed by scholars.Among them,the “fixation”standard raised by Supreme People’s Court of China seems to have solved some problems,but it brings more with it that are difficult to overcome.Causality liability and the “last step rule” both has flaws and cannot be taken as the standard of determining divided infringement.The fourth way is to hold all performers responsible,including the standard of“participation and combined action” “joint enterprise”,the idea of “cooperative infringement” “all-steps” rule,the “flexible factor consideration” standard.The“participation and combined action” standard was not clear and lived shortly.The“joint enterprise” rule can only be applied in very limited circumstances.The “mutual indirect liability” approach cannot solve the problem that the assumption of indirect liability is based on the existence of direct infringement.The “all steps” rule attacks too extensively.The idea of “flexible factor consideration” only givs the consideration factors without giving specific criteria is equivalent to giving no standard.Based on the above analysis,all these existing approaches to solve the problem of patent divided infringement have various problems.In fact,patent divided performance is too diverse to apply one single principle and construct one single rule to solve all problems.The construction of patent divided infringement determination standard needs to form specific rules according to the specific conditions under the premise of distinguishing different situations,and then integrate these specific rules into a system,so as to completely form a systematic patent divided infringement determination standard.A syllogism method can be adopted in doing this: firstly,define the legal principle as the major premise,including the general rules of tort law,and the special rules of patent law;then define the specific situation of patent divided infringement as the minor premise;then substitute the minor premise into the major premise to draw a conclusion.Specific rules are formed after analysis and argumentation in each case.Finally,specific rules in all situations are integrated to form a systematic determination standard.Specifically: the general rules of tort law related to the determination standard of patent divided infringement include :(1)damage result is the premise of the establishment of infringement,and the essence of the damage result is the destruction of social relations..(2)If a “mastermind” uses the act of the “tool man” to commit the infringement,he shall bear the tort liability directly..(3)Joint infringers with common intention shall bear joint liability.(4)The tort liability of several persons without intentional contact is established on the premise that the damage result is caused,and the liability is dynamically adjusted according to the fault and causative connection of each actor.(5)In determining who should bear the responsibility,principles like “own responsibility” “fault liability” should be obeyed.(6)In a given situation,the“condition creator”,not the trigger,is responsible.(7)When an agent is involved in a tort,the liability of the agent is determined mainly according to his subjective state.(8)The evidence of exterritorial laws can further prove the commonness and rationality of the above principles and can help find the deficiencies that need to be paid attention to.The patent law principles that need to be considered when constructing the patent divided infringement regulation system include :(1)the purpose and mechanism of the patent system.Patents are not “sacred”,but the rights are not to be easily evaded.(2)The scope of protection of the patent right is delimited by the right holder himself.(3)There is a dichotomy between method and product patent.The protection of method patent should not be extended to products at will if it is not based on the explicit provisions of law.(4)The nature of patent infringement is: for the purpose of production and business,without permission nor specifically excepted by the law,one reproduces the patented technology through his own behavior,or behaviors under his control that can be attributable to him.The essence of patent infringement liability is the liability for the fact that the patented technology is illegally reproduced.“Minor premise” is the specific situation of patent divided infringement.In order to substitute the legal principles summarized as the “major premise” more accurately,it is necessary to categorize the specific situations of patent divided infringement.Based on the core factor of different types of relations between divided performers,patent divided infringement situations can be categorized as follows:(1)There is a meaning connection between the performers.(2)The situation where the “mastermind”uses the “tool man” to complete the performance of the patent.(3)The situation of“technical scheme decider”.(4)Situation where there are specific relationships that conform to the application of vicarious liability among multiple performers(5)The situation of “coincidence”.(6)“fixation” situation.(7)Situation where one entity itself does not perform any steps of the patented method,but provides tools,methods,training,consultation,guidance,etc.,for others to perform the patent method.(8)Special situations: product patent with method characteristics and method patent with product characteristics.The patent is special but the rules are the same,the relevant rules of(2),(3)and(6)mentioned above shall apply.Substituting all these different categories of “minor premise” into “major premises”,one conclusion could be drawn: under the premise that the patentee has properly determined the scope of patent protection thus the divided performance of the patent did have caused damage result,some situations of patent divided performance should be determined as infringement and be regulated.Based on the subject form,patent divided infringement liability can be divided into single subject liability and multi subject liability.The former includes the situation where“mastermind” makes use of “tool man” and where there is “technical scheme decider”.The latter includes joint infringement with common intention,and some of the joint infringement without intentional contact.According to such “syllogism” reasoning results,the liability assumption rules in each specific situations of patent divided infringement have been made clear,and after synthesis,an institutional system for regulating patent divided infringement in China can be constructed: For patents that wouldn’t have been authorized if drafted in a unilateral way,and patents that are drafted in a unilateral way,one who performs some of the steps of the patent himself,and conforms to one of the following circumstances,essentially controls the performance of the remaining steps,or determine the patent technology’s reproduction,will be determined as using the patent method.(1)Use the behavior of others as a tool to complete the performance of the remaining steps;(2)Explicitly assign the remaining steps of the patented method to the counterpart of a contract,such as work contract,technical service,agency,etc.,or be aware of and accept the performance of the remaining steps by the counterpart even when the contract does not explicitly specify the specific steps;(3)Perform steps during the provision of a product or service that have no substantive purpose other than to reproduce the patented technical scheme,and the only use of the product or service by the user is to perform the remaining steps of the patented method;(4)condition the provision of products or services on the performance or promise of performance of the remaining steps of the patented method;(5)other circumstances in which the actor can be identified as controlling the performance of the remaining steps or determining the reproduction of the patented technical scheme.Under the above circumstances,if the performer of the remaining steps also knows the overall technical scheme and pursues the beneficial effect brought by the overall reproduction,it should also be determined as using the patented method and will be held liable according to the extent to which the steps it performs contribute to the reproduction of the overall technical scheme.