Research On The Constitutive Requirements Of Indirect Patent Infringement

In China, there are different arguments about indirect patent infringement.Scholars are divided into two parties, the independence party and the dependenceparty. The main reason about this may be the fact that it is still blank about indirectpatent infringement in the legislation in China, and the local court of different placesalso applied different regulations and opinions. In order to solve the problem, first, wehave to define the subjective requirement, the form of illegal acts, the damages andthe causal relationship within the protection area of indirect patent infringement.Second, we need to find the balance point between the public interest and the patentowners’ interests, the distinctions between the similar terms also need to be clear. Lastbut not least, the appropriate modifications of the articles are necessary, they shouldadapt to the changes of society and technology. With the beginning of the preparationof the fourth revision for Patent Law, I want to give my own proposal for thelegislation. Combining the foreign legislation with the tort theories in China, myproposal is from the narrow definition to broad definition, the appropriate constitutiverequirements should be found, that will help us to define the protection area ofindirect patent infringement. This dissertation is composed of three parts，which are asfollows:The first chapter is the brief introduction，I will introduce the historical origin ofthe indirect infringement of patent, the distinctions between indirect infringement andthe similarities and the status quo of the infringement in China.The second chapter is the analysis of the constitutive requirements of indirectinfringement in patent from the perspective of legislation abroad. The two majorclassifications, according to the laws from United States, EU and Japan, arecontributory infringement and inducing infringement. And the constitutiverequirements of indirect infringement in patent are the subjective requirement, theillegal acts, the damages and the causal relationship between acts and damages.The third chapter I will introduce the current condition of the indirect patentinfringement legislation in China, and then the problem of building a framework ofindirect infringement. At last I want to put forward the concrete legislative proposalsabout indirect infringement of patent in China.