Research On The Identification Of Indirect Infringement In Patent Infringement Litigation Practice

With the rapid economic development,patent infringements have become more frequent.At present,China's patent infringement determination rules are based on the principle of comprehensive coverage,that is,the court can only determine that the patent infringement is established when the alleged infringing product meets all the technical features recorded in the patent claims.Indirect patent infringement refers to an act in which the actor knows that the patent right already exists,and knows that the third party will commit the patent infringement,and still provides the key parts of the patent or other necessary assistance.However,the products involved in indirect patent infringement only meet some of the technical characteristics of the patent,and judicial practice often fails to determine that these acts constitute infringement based on the principle of comprehensive coverage.Indirect patent infringement is regarded as a difficult point in the practice of infringement litigation,and China's laws have always adopted an evasive attitude towards it.China's "Patent Law" has been revised three times.Although many scholars advocated the introduction of a patent indirect infringement system during the revision process,the current "Patent Law" still only stipulates the issues related to direct infringement based on various considerations.In the absence of clear legal provisions,the court can only determine indirect infringement through the common tort theory in accordance with the provisions of the General Principles of Civil Law,the Tort Liability Law and related judicial interpretations.In addition,in the absence of legislation,the courts have determined that the basis for indirect infringement is different,and there are often different judgments in the same case.The Interpretation of Several Issues Concerning the Application of Laws in the Trial of Patent Infringement Disputes(II)adopted by the Supreme People's Court in 2016,for the first time regulated indirect patent infringement,but in fact the judicial interpretation still supports the resolution of indirect patent infringement through the joint tort theory problem.Therefore,how to break through the limitations of the joint tort theory and reasonably identify indirect infringement in the practice of tort litigation is very important.This article first defines the indirect infringement of patents,compares the similarities and differences between indirect infringements,direct infringements and joint infringements,andbelieves that indirect infringements of patents are an independent form of infringement,which should have its own criteria for identification and cannot simply use joint infringements.Judging by theory.Secondly,it investigates the current status of indirect infringement determination in China and analyzes the legal provisions on which indirect infringement is determined in practice.Sort out the indirect infringement cases tried by the Chinese courts in the past 10 years from 2010 to 2020.After analyzing the court's judgments,the categories of the rights involved,the objects of the acts involved,the basis for the judgment and the results of the judgment are counted to further clarify the current judicial practice in China Identify problems with indirect infringement.Thirdly,we will investigate the indirect patent infringement system represented by the United States,Japan,and Germany,and analyze the legal requirements of relevant systems to discuss the constituent elements of indirect infringement.Finally,this article believes that on the basis of drawing on the experience of the indirect patent infringement system outside the territory,and based on China's national conditions,past legal systems and judicial practical experience,the patent indirect infringement system should be formally introduced into China's Patent Law.