Patent Indirect Infringement Legislative And Judicial Approaches In China And Japan

Chinese Patent Law does not set forth any provisions on indirect infringement of patent. There has been a rigorous discussion in the IP industry in China about whether it is necessary to restrict indirect infringement in Patent Law and how it should be stipulated. In not a few patent infringement lawsuits, China People's Courts have already recognized indirect infringements of patent based on the general principle, which governs liability for torts committed by more than one parties, provided by Article 130 of Chinese Civil Law and its related Judicial Interpretation. However, at this moment, the requirements for claim of indirect infringements and standards which must be complied with to meet the requirements differ from court to court, and therefore, sometimes it is difficult for the parties to foresee the court decision.Japanese Patent Law has a provision with regard to indirect infringement of patent since 1959, which stipulates that acts of manufacturing, assigning, leasing, displaying for the purpose of assignment or lease, for business purpose, the articles to be used exclusively for implementing patented inventions shall be deemed to constitute indirect infringement. Based on academic researches and long-term discussions, as well as judicial precedents concerning to indirect infringement, Japanese Patent Law was reformed in 2002 to include a new provision with regard to another form of indirect infringement, i.e., acts of manufacturing, assigning, leasing, displaying for the purpose of assignment or lease, for business purpose, the articles used for implementing patented inventions (except for commodities widely distributed within Japan) and indispensable for solving the problems of the invention, with the knowledge that the invention is a patented invention and that the articles will be used to implement the invention. Japanese courts deal with patent indirect infringement lawsuits based on the requirements stipulated by Patent Law, and the standards that the courts hold must be complied with to meet the requirements are relatively high. The history of legal system against indirect infringement in Japan has a number of interesting twists and turns, which may provide some suggestions for Chinese legislators. Therefore, this article analyzes the legislative and judicial approaches to protect patent right against indirect infringement, making a comparison between China and Japan.This article includes four parts; the first part introduces current situation and historical development of the legal system against indirect infringement both in China and Japan, with introducing some famous court cases; the second part conducts a statistical survey and an analysis of the indirect infringement cases in China and Japan, in an attempt to understand the current situation and problems of the courts of the two countries; the third part compares the legislative, academic and judicial approaches to the patent indirect infringement of the two countries, especially in terms of the requirements for indirect infringement; the fourth part provides author's suggestions for creating a better system in China.