Comprehensive Research On The Constitutive Requirements Of Patent Indirect Infringement Of China

It is said that in accordance with traditional theory on patent infringement, thedirect patent infringement constitutes only if the article is covered by all patentedtechnical features. That is the so-called omni directional coverage principle.However, in practice, in order to avoid such principle, some people may not performall technical features of patent claims, but implement the key technical features orprovide raw materials or equipment specially used or adapted for the patentedtechnology. Some people abet or induce others to infringe. These acts themselvesdo not constitute patent direct infringement, but to some extent, they contribute to orhelp someone else to perform patent infringement. Such acts are called as patentindirect infringement.There is no stipulation for patent indirect infringement in the Chinese Patent Law.But actually there have been lots of similar cases in China. Some courts have maderelevant judgments on this issue. In fact, this patent indirect infringement issue hasbeen discussed and researched on for a long time and by many scholars, lawyers,patent agents, patent owners and judges. This paper focuses on the constitutiverequirements of patent indirect infringement in China using the methods of casestudies and comparative studies based on the traditional tort theories.This paper concludes about26000words, and has three parts except the forewordand conclusions. The first part is about two cases occurring in China. After brief, analysis andsummary of the cases and the courts’ reasoning for judgment, some topics and issuesare raised for further discussion, of which are the inconsistency of the legislation andjudicial practice and what constitutes the patent indirect infringement in China.The second part goes with the international comparative study of patent indirectinfringement. According to comparison with such countries as United States, Japan,and Germany, the issue of constitutive requirements of patent indirect infringement isprofoundly discussed. First, the relationship between patent indirect infringementand direct infringement is analyzed for the similarities and differences. Secondly, onthe above basis, the scope and classification of patent indirect infringement is defined.Finally, the discussed issue in this paper is solved and specified in the fault of theinfringer, the subject of the infringing acts, and the pattern of the acts.The third part focuses on the constitutive requirements of patent indirectinfringement in China. The discussion starts with the disputes on two differenttheories about the relationship between patent indirect infringement and directinfringement. The indirect infringement shall be divided into two categories asinduced infringement and contributory infringement. Secondly, the specific patternsof patent indirect infringement are put forward after the study of another three typicalChinese cases. The last but not the least, the discussed issue in this paper is settledin three perspectives as the fault of the infringer, the subject of the infringing acts, andthe pattern of the acts.