The Types Analysis Of Patent Indirect Infringement Behavior

The theory of patent indirect infringement originated from the United States. Since then, the system gradually was introduced into other countries. At the same time, due to the different of legislation background, economic and political and other aspects, different national regulations in the legislation are not consistent. Though the rules vary from country to country, but for the introduction of the system always keep a positive attitude.But our country has not been quoted the patent indirect infringement. In the judicial practice, judges often quote the rule of joint infringement to penalize this behavior. However, there are many different between joint infringement and patent indirect infringement. The judgements which reference the term of joint infringement have many shortcomings. Therefore, compared to conservative legislation, academics and judicial workers have already worked in advance of the legislation. Many scholars on whether to introduce the system of patent indirect infringement and how to introduce expressed a lot of views. So far, many scholars have strongly advocated that the system should be introduced. Similarly, in the administration of justice, many judges get ahead of legislation. During the trial, the judges decisively cite related theory of patent indirect infringement to judge.Due to the above phenomenon, the legislative proposal on the system has been repeatedly put on the agenda. But legislators have been cautions on this, and have not adopted those views. Legislators think that there are still a lot of controversies on this system. So it is not appropriate for the introduction of this system. The industry has a lot of discussion on joint infringement and indirect infringement. Based on space limitations, capabilities and innovation requirements, this article can not directly discuss this ambitious research. Author supports the introduction of this system in our country, and this article only discusses the types of patent indirect infringement behavior. After all, in the controversies about the indirect infringement, the choice of the types of behaviors is one of the controversies. If not scientific analysis for the types of patent indirect infringement behaviors, we can not advance further on the path of the system into law.Firstly, this paper analyzes the cognition and applicable history and status of judicature circles about the types of patent indirect infringement behaviors. Through the studies of many cases, show that the administration of justice is still relatively cautions on the determination of patent indirect infringement. Judges only determine the behaviors that actors provide vital components of a patented product to others for indirect infringement. Meanwhile, the majority of the courts also ask the actor to provide the articles dedicated to the patented product. The Beijing Higher People’s Court holds that indirect patent infringement is not only for the product patent, but also should be directed to a method patent. Similarly in theorists, it has been controversial for patent indirect infringement behavior should include which circumstances. Some scholars believe that this behavior should be limited to providing specific items. However, some scholars believe that this behavior should also include more types of lure behavior and helping behavior.The famous Comparative Law Professor Zweigert who once said, comparative law as a way for a country provide a wider range of settlement patterns than that of domestic law. When we are plagued by domestic complicated controversial, comparative law is perhaps the best way to solve the controversial. Despite the different legal orders, as long as addressing the same issues of fact and meeting the same requirements of law, they can be compared. If some behavior can be applied to our current legal system, it not is included in the system of indirect infringement. Only those behaviors that can not be applied to existing legal regulations and do harm to the patentee, should are included in the indirect infringement behavior.Patentee needs to control this part of the act, both in the United States, Europe, Japan, Korea and other technologically advanced countries, or in a country committed to creating innovative society countries. Thus, for the domestic disagreements, firstly, the second chapter compares the relevant legislation abroad. Then author combine the purpose of the system and provisions of the existing legal framework, and proposed type of indirect infringement behavior that suit our present situation.Author believes that our indirect infringement should only include contributory infringement. For lure infringement and other violations, can be applied to the provisions of contributory infringement. So there is no need to be included in indirect infringement. Specifically, patent indirect infringement behavior should be limited the following two categories. The first, actor provides or promises to provide the key component of patented product for other peoples; the second, actor provides or promises to provide the key component for other peoples to use the patented method. In addition, infringement deciding, not only analyzes the behavior, but also considers other factors, such as subjective element, the relationship between indirect infringement and direct infringement and so on. The third chapter will describe the details about above factors. Include the following aspects:(1) Behavioral component. The way of act was defined as “providing or promising to provide”. And the object of act is limited to the key component of patented product or implementation patented method.(2) The perpetrator must have the subjective intend. The identification of intention shall meet two conditions. First, perpetrator clearly knows the patent; the second, perpetrator’s purpose is to help others to infringe patents.(3) The judgment of infringement does not require the existence of direct infringement. If you require the existence of direct infringement, there is no difference between contributory infringement and indirect infringement. In this case, there is no need to introduce this system.(4) In the absence of direct infringer, the indirect infringer should bear liabilities independently. However, if there are direct infringers, they should accept jointly responsibility. In this case, the patentee can sue anyone between indirect infringer and direct infringer.