Study On Indirect Patent Infringement-and Review On Article 21 Of Judicial Interpretation Of Patent Disputes (Second)

The birth of indirect patent infringement is based on the expansion of scope of legal protection of patent for the patentee,the right will be extended to non-patent products.Since its birth game between the interests of the patentee and public never come down.The patent indirect infringement system in different developed countries is different, and the current domestic legislation, judicial practice and academic circles have no unified theory.This thesis argues that the patent direct infringement should be the premise, the relationship between the adjacent concept of joint tort and indirect patent infringement is the overlapping relationship.Compared with the previous legal documents,although Article 21 Of Judicial Interpretation Of Patent Disputes(Second) has a stronger legal binding force,the description of the subject and object of the infringing person seems to be more specific in the content of the provisions, but the judicial interpretation is still inadequate. First,the provisions of contributory infringement and infringement is fuzzy.Second,there is no clearly defined the scope of the object of the tort.Third,not specified in the applicable law of regional validity and the relationship between indirect and direct infringement.Fourth,the designation of proceedings lacks of operability,and the statement of spokesman didn’t match the legal logic.Fifth,the legal document has low level of effectiveness and messy provisions,and can not replace of legislation.On the basis of existing laws and regulations and the latest draft revision of the Patent Law,Combined with domestic and foreign legal systems judicial practice, this thesis proposes that indirect infringement of patent law should not have extraterritorial effect;Our country should adopt the legislative model of contributory infringement,then inducing infringement can be covered by tort law.The compensation system should be based on the type of tort behavior, anyone who committed acts of contributory infringement should bear liability for wrongs,anyone who committed acts of inducing infringement should bear joint responsibility.Correspondingly,under the contributory infringement,the right holder could choose a separate prosecution of indirect infringement, or the direct infringement and indirect infringement together as a co defendant.Additionally,this thesis also analyze several constitutive elements of the contributory infringement.And then,under the current legal environment, the judiciary should be appropriate to relax the protection to the patentee.At the end,the thesis suggests that the patentee should enhance the level of patent drafting for self-protect.