Research On The Constitution Of Patent Infringement

The constitution of patent infringement liability includes the subjective constituent elements of "for the purpose of production and operation" and the objective constituent elements of "implementing its patent without the patentee's permission".Among them,the scope of the subjective constituent elements of "for the purpose of production and operation" is not clear,and the scope of protection of the functional characteristics is not clear in the objective constituent elements.The current patent law and relevant laws and regulations in China do not give a clear explanation to these disputes,so people's courts at all levels have different standards in judging patent infringement cases.This situation is not conducive to judicial unification,the lack of protection of the interests of patentees,and the vague understanding of the boundary of patent rights by the public.In the long run,it will have a negative impact on the sound operation of scientific and technological forces.Therefore,it is of great significance to clarify the scope of "for the purpose of production and operation" and the protection scope of functional characteristics for theoretical upgrading and system improvement.The main body of this paper is divided into four parts.The first part defines the constitutive elements of patent infringement liability,and points out that there are two controversial issues: unclear scope of "for the purpose of production and operation" and unclear scope of protection of functional characteristics.The second part combs the domestic and foreign provisions on the scope of "for the purpose of production and operation" and the scope of protection of functional characteristics,and makes a comparative analysis of the domestic and foreign provisions and legislative trends.In the third part,the causes of disputes about the scope of "production and operation purpose" and the protection scope of functional characteristics are discussed in depth.The fourth part puts forward some suggestions on the disputes.It holds that the definition of the scope of "for the purpose of production and operation" can be restricted in many aspects,such as the way to implement patent for the purpose of "non-production and operation",and that the functional characteristics can be optimized according to the idea of expansionary or restrictive interpretation.