The Determination Of “for Production Or Business Purpose” In Patent Infringement

As a key component in the consideration of infringement in PRC Patent Law, “for production or business purpose” doesn’t draw much attention from academic and judicial field for a long time. There is no universal opinion on this question among courts and even result in contrary court decisions. There is also different opinion on the definition of unit and on whether the unit should conduct the patented products for its regular business or not. The main issues in the consideration of “for production or business purpose” lie at manufacturing behavior which is not for sale, usage behavior, and importing behavior which is not for sale. This paper not only goes through the fundamental theory of patent law, judicial cases, academic research and judicial interpretation on “for production or business purpose”,but also comparing with similar legislation aboard, discussing the main issues, to achieve clarity in the understanding and application of “for production or business purpose”. This paper makes a preliminary conclusion that: “for production or business purpose” should be interpreted in a broad sense; and that companies should not be “for production or business purpose” when they make the patented products only for the purpose of ascertain the sufficiency of its described effects, and administrative organs and public institutions can’t defense it by “for public benefits”.There are seven chapters in this paper, which firstly introduces the problem in the consideration of “for production or business purpose” among the judicial verdicts; secondly concludes the opinion of academic field and judicial interpretation on “for production or business purpose”; then through the comparison with similar legislation aboard, and concludes that our patent law can’t completely refer to the usage of “done privately and for non-commercial purposes”; fourthly, concludes that “for production or business purpose” should be interpreted in a broad sense to the accordance of fundamental theory of patent law and industrial policy; then this paper focuses on the main issues in the consideration of “for production or business purpose”; finally, this paper makes a summarization of conclusion on determination of “for production or business purpose”. As for the vagueness of the “for production or business purpose”, this paper asks for a modification of the expressionfrom legislative organs tomake its meaning clearer.