On The Determination Of Patent Infringement Liable Parties In The OEM Production

The first part discussed the nature and legal characteristics of OEM contracts. OEM, ODM is a typical form of OEM contracts, but they lack of a fixed pattern, and not of evolution, but the nature of OEM, ODM contracts are the work contracts, which are fundamentally different to contracts of sales and the trademark licensing contracts. The second part was to be introduced of different approach to determine the manufacturer of OEM patented products in the judicial practice. The first point thinks that the ordering party of the OEM contracts who is the manufacturer of patented products. The second point thinks that owner of identification mark who is the manufacturer of patented products, which had marked on the patented products. The third point thinks that the contractor and the ordering party of the OEM contracts whose behavior are a common manufacturing acts and that constitute contributory infringement. The fourth point adopts the general fault liability theory. This theory thinks that the actual producer of the patented products or the one who abets or assists another person in making the patented products is the manufacturer of patented products. The third part discussed the OEM contractor identified in patent infringement liability. Contractor identified patent infringement liability consistent with the general patent infringement liability. The principle of imputation of patent infringement liability is a principle of presumption of fault strictly. Determining whether the contractor constitute patent infringement that based on constituent elements and identify general principles of patent infringement. The fourth part is the key, which discussed the determination of patent infringement liability of the ordering party in the OEM production. Through the systematic interpretation of tort liability norms for typical ordering part in the specific infringement areas, and from the relief theory in favor of the victim, the theory of balance of interests, risk control theory that determines the ordering party as a manufacturer of the work contracts on the contracts law, who shall be subject to the infringement liability for manufacturing patented products without permission of the patentee. The fifth part discussed the issues of the joint and several liability or respectively liability between the ordering part and the contractor. If the ordering part and the contractor have a common meaning contact or have a abetting or assisting situation, they shall be subject to the joint and several liability.