| The indirect patent infringement system was established in order to protect the interests of patentees in a more comprehensive manner.We know that the scope of protection of patent rights is legally based on the scope of claims.The interests of patentees and society in direct patent infringement The public interest is based on this boundary and reached a balance,but if the laws of a country only provide for direct patent infringement,it will be difficult for patentees to obtain true protection.Indirect patent infringement is to compensate for the traditional patent infringement system The insufficiency of patent indirect infringement should be decided to introduce the patent indirect infringement system or return to the traditional theory of common infringement.There has been a lot of controversy in the academic and judicial circles.The academic circles have repeatedly suggested that China's legislative branch should learn from overseas experience.The introduction of an independent patent indirect infringement system,but legislation and justice are more inclined to classify "indirect patent infringement" into common infringement for remedy.Patent indirect infringement is a difficult problem in judicial trials that has been emerging in recent years,and it is also the practice of various countries.Hot topics that the world and the theoretical world pay attention to and discuss.Indirect infringement is more difficult to adapt to common infringement rules than induced indirect infringement of patents.There are three main problems in China regarding the constituent elements of indirectinfringement of assisting patents: the relationship between indirect infringement and direct infringement,and indirect infringement of patents.The subjective status of the actor,and the type and object of the patent infringement.In the paper,There are our parts can be divided,they are as follows:The first chapter mainly contrasts four typical cases of indirect infringement of assisting patents,and raises three prominent issues.First,whether the indirect infringement of assisting patents should be based on the occurrence of direct infringement.There are differences between each other,even in the same case,there are diametrically opposite expressions between the first and second instance.Second,the qualitative ambiguity of the subjective elements of the tort actor is not disputed in judicial practice.However,there are great differences in the judgment of faults.Third,the issue of the identification of "exclusive products" There is no specific standard for the identification of "exclusive products" in China.The determination criteria are too simple.Most of the expressions of the judgments are "exclusively used","only for","not having other commercial purposes",etc.,which will lead to the failure to form a clear standard and direction in judicial practice.Second,China's determination of "exclusive products" It is limited to special products that can only be used for the implementation of patented technology,and has not yet been extended to multi-functional "non-dedicated" items.Whether to borrow foreign "non-dedicated" items for infringement is worthy of our input.We discussed further addition and describes the legislative and judicial status quo for help type indirect patent infringement.The second chapter mainly discusses the objective constituent elements of patent-assisted indirect infringement,which includes three aspects.First,whether the indirect infringement of a patent must be based on the occurrence of direct infringement.In this section,the application of the common infringement theory and regulation is discussed.The impact of indirect patent infringement on "subordinate property".In addition,three main viewpoints on "subordinate property" are introduced,namely "subordinate theory","eclectic theory" and "independent theory",and they are analyzed and studied.Finally,the introduction The perspectives ofextra-territorial legislation and the judiciary on the "subordinate property" are compared and analyzed.Second,the types of indirect infringement of assisting patents,this section introduces different types of infringing acts of assistance,mainly divided into "providing infringement of exclusive products" and "Non-Provision of Infringement of Exclusive Products",and a comparative analysis of joint infringement and indirect infringement of assisting patents.Third,for the determination of "exclusive products",this section introduces the provisions of China's legislation on "exclusive products" However,its description is relatively vague.In judicial practice,the "exclusive product" is only attributed to "unique use","no other commercial use","dedicated use",etc.,and most of them have avoided analysis without too much explanation.Over.Then introduced the views of Chinese academic circles on "exclusive products",the main focus is that there is no other "substantial use".Based on this view,this article divides the "substantial use" into different situations and draws on the US and Japanese jurisprudence.An analysis was conducted.There are two special problems in the identification of "exclusive products",one is the "non-exclusive product type infringing articles" and "critical elements" identification standards,which correspond to the legal requirements of Japan and Germany,and Analyze this.The third chapter mainly studies the subjective requirements of indirect infringement of assisting patents.First,this chapter analyzes the impact and deficiencies of the common infringement rules on subjective requirements in China at the present stage.Second,it analyzes the "subordination theory" and ""Independence" will have different effects on the subjective elements.Finally,for the analysis of subjective elements,I analyzed from three perspectives.First,whether the subjective elements of the indirect infringer "knows" should be known.Second,if it is determined that the subjective state needs to be "knowledge",specific provisions need to be made on the content and object of "knowledge".Third,whether China applies objective standards and abandons subjective elements.The fourth chapter mainly puts forward some suggestions for the construction of the indirect infringement system of assisted patents in China.First of all,Chinashould adopt the viewpoint of "independence theory" and "subordinate theory" cannot cover all aspects of indirect infringement of help patents.The situation changes and is unreasonable,and the indirect infringer under the above special circumstances will be indulged in performing the infringement,and the rights of the right holder cannot be properly protected,which also loses the significance of the establishment of the indirect patent infringement system.Second,China The type of infringement of "providing special products" should be adopted.For other types of infringement,the common infringement rules will still be dealt with.For the model of special products,the experience of the United States will be used,as long as the component is used in addition to other functions that can be applied to implement patented technology and If it does not have "substantial" use,that is,if the component "has no substantial non-infringing" use,it can be considered to constitute a "special component." Substantive should be examined from various aspects such as economics,commerce,and common sense,so the substantial non-infringing use Must be in line with the principle of economic benefits,it must be practicable,and it must even be mass-produced rather than arbitrarily fabricated and false.Unrealizable,non-economic,and purely experimental.In the end,China 's enactment of an indirect infringement system of patents should limit the subjective status of indirect infringers to subjective intentional intentions,and should not include “knowledge” requirements.The content of "knowingly" still uses the two facts of "knowingly" its "existence of patent rights" and "direct acts constitute patent infringement".In addition,objectivism is not suitable for China. |
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