Study On The Independence Of Patent Indirect Infringement

Indirect patent infringement originated in a judgment of the Circuit Court of the District of Connecticut in 1871.In general,indirect infringement refers to the act of an actor who knows that the product is a device,intermediate,or part of a product that is specifically used to implement a patent,and that provides the patent to another person for production and business purposes without the permission of the patentee.China’s first indirect patent infringement case occurred in 1993.Since then,related judicial judgments have appeared one after another in domestic judicial practice.However,due to the lack of clear provisions in the law,local courts often have different views on whether the indirect infringement should be based on direct infringement.Some courts strictly follow the joint infringement.When a patentee cannot prove the existence of a patent infringement or the act of use patent does not constitute infringement,the court did not judge the helper to assume liability for infringement.However,when there are acts of implementing patents abroad or a large number of users implementing patents,even if these acts do not constitute patent infringement,some courts will,based on the principle of fairness and justice,still judge the helpers to bear the liability for indirect infringement.Looking back at the historical sources of indirect infringement,we can find that the indirect infringement system was created to compensate for the lack of direct infringement.When the perpetrator’s help behavior brings an uncontrollable loss tothe patentee,and the entity directly implementing the patent cannot be subject to legal regulation due to “non-production and management purposes” or “outside the country”,the right holder can pursue the helper’s responsibility to make up for their own losses.Analysing the relevant laws and academic opinions of the United States,Japan,and Germany,we find that the United States,as the country of origin of indirect patent infringement,has undergone rather mature discussions in the academic and judicial practice.The U.S.Patent Law does not stipulate that indirect infringement should be premised on direct infringement.Although U.S.courts had earlier said that “if there is no infringement of a patent there can be no contributory infringer”,they have increasingly tended to examine the dangers of indirect infringement regardless of whether there is direct infringement,for the expansion of foreign trade and protection of patents in the United States.Japanese Patent Act also does not stipulate that only direct infringement can be held to pursue the liability of indirect infringers.However,there are different views in the Japanese academic world,including“independence theory”,“subordination theory” and “amendment theory”.Germany Patent Act stipulates "indirect infringement" as an independent type of patent infringement.Chinese patent law does not have clear provisions on indirect infringement.In judging related cases,the court mainly makes judgments according to the relevant provisions of the General Principles of Civil Law or Article 9 of the Tort Law.In Chinese academic circles,whether the indirect infringement is based on the premise of direct infringement,there are three opinion “Independence theory”,“Subordination theory” and “Compromised theory”.The “Independence theory” said that the establishment of indirect infringement does not require direct infringement as a precondition;“Subordination theory” states that there is no indirect infringement without direct infringement;“Compromised theory” is to set individual exceptions on the basis of “Subordination theory”.Back to the indirect infringement system,indirect infringement cannot be equated with joint infringement,and indirect infringement system has its ownrationality.The joint infringement rules determine the help behavior that cannot fully protect the interests of the patentee,especially in this era of encouraging innovation but weak patent protection.