Study On The System Of Indirect Infringement Of Patent

The system of indirect infringement is to redeem the disadvantage of traditional patent infringement for the protection of the patentees, and is also a domain which can not be avoided in the patent protection legislation. Nowadays, more and more countries ordain the system of indirect infringement in their patent laws in order to protect the patentees effectually, and the system of indirect infringement has become a full-blown law operating mechanism in the protection of the patentees. But so far it is not prescribed in our patent law. For this reason, many courts have to use general rules of the joint torts which is prescribed in the civil law to adjust the disputes about the indirect infringement. But this can not commendably settle the key problems which the system of indirect infringement must be considered, and can not settle the contradiction in the system design between the civil responsibility which the indirect infringer must bear and the unidirectional coverage principle, and it can not be reflected the balance between the interests of patentees and general public in the patent law. Consequently, we must learn from other countries' experience and define the system of indirect infringement which is in conformity with the national conditions urgently.The indirect infringement is discussed systemically in this dissertation, in order to make a contribution to the system of indirect infringement in our country. Under this background, this dissertation has been divided into five parts except the foreword and conclusion.In the first part of the dissertation, the historical development of the system of indirect infringement is arranged. From the origin and the development of this system, we can learn that the main purpose of this system don not make the patentees to have the corner on non-patented articles, but is to redeem the disadvantage of traditional patent infringement for the protection of the patentees, and advisably extend the protection for the patentees.In the second part of the dissertation, the author analyzes and discusses in the details on the concept, characteristics, nature, compositions of indirect infringement. The indirect infringement is a concept which is just relative to direct infringement, and is not a concept which is a breakthrough from joint torts in the civil law. The establishment of the indirect infringement must be considered of subjective element, behavior element, object element, and objective element.The third part reviews the system of indirect infringement in America Japan and EU from the system design and the specific rules.In the fourth part of the dissertation, the author analyzes the current situation about the legislation and the juridical practice in our country. The system of indirect infringement is not prescribed in our patent law, and the courts use general rules of the joint torts which is prescribed in the civil law to adjust the disputes about the indirect infringement.In the fifth part of the dissertation, firstly the author analyzes the defects of our legislation, secondly the author elaborates the necessity of define the system of indirect infringement in the patent law, lastly the author provides some legislative suggestions about the system of indirect infringement from the relationship between the indirect infringement and direct infringement in patent, objective behavior, subjective intention and the argumentations of non-indirect infringement of patent rights.