How to identify indirect patent infringement? Indirect infringement includes two elements: behavior and illegality. "For infringement, when there is a prohibition of infringement in civil law, illegality is a violation of the prohibition of civil law; When there is no prohibition of infringement in civil law, the right to protect rights is created on the basis of civil law, and the right is endowed with the characteristics of preventing infringement. Illegality is the inviolability of violating rights. Therefore, under the existing legal framework of our country, it is necessary to distinguish different situations to judge the illegality of indirect patent infringement. In general, the occurrence of direct infringement is the premise of the formation of indirect patent infringement, and it is stipulated that even if there is no direct infringement in special circumstances, the indirect patent infringer can be investigated for tort liability. Regarding the former, it is easy to judge the illegality of indirect patent infringement. As long as they constitute the same infringement, the whole act violates the prohibitive provisions of the patent law and is illegal. At this time, we need to pay attention to the proof of direct infringement, that is, use the principle of universal coverage to judge whether the technology involved in this implementation is covered by patent claims. Regarding the latter, that is, how to judge the illegality of indirect patent infringement when the patent implementation behavior is personal non-profit implementation or is not regarded as infringement in law? The basis is that the actor violated the obligation of inviolability of rights. The Patent Law defines individual non-profit patent implementation behavior and patent implementation behavior after the exhaustion doctrine Principle as non-infringement behavior. The reason is that when the patent law gives the patentee a certain monopoly right to stimulate creation, it is necessary to strike a balance between the interests of the patentee and the public, so as to help others continue to innovate or recognize certain interests on the basis of patented technology; However, the implementation of these non-infringing patents is kept in a very narrow range because of the limitation of other factors or the limitation of the actor's own ability, which does little harm to the interests of the patentee. However, the appearance of indirect patent infringement has broken this balance, making a large number of individuals who do not have the ability to implement patents, causing great losses to the interests of patentees and infringing their patents. However, because the indirect infringement of patent is indirect to the infringement result, that is, it affects the damage result through direct infringement or the intermediary of patent implementation, so when it does not constitute joint infringement, it only needs subjective fault judgment from the perspective of inviolability of infringing rights. Because if the actor is not at fault subjectively, it is difficult to determine the relationship between indirect patent infringement and patent implementation, and it is impossible to determine that the loss of the obligee is caused by the indirect patent infringement of the actor, and there is a fault in the causal relationship, so it cannot be determined that it constitutes infringement. At this point, the judgment of illegality needs to be comprehensively analyzed with other factors, and at the same time, it needs to prove the existence of patent enforcement, because without patent enforcement, there will be no infringement results. Regarding the situation that the direct infringement occurs or may occur abroad, it can be handled with reference to the non-profit behavior of the above-mentioned individuals or the behavior that is not regarded as infringement by law. According to the regionality of patent rights, the implementation of overseas patents cannot be regarded as patent infringement, but the indirect infringement of domestic patents will have a great impact on the export sales of patented products, thus causing great damage to the interests of patentees and constituting an infringement on the inviolability of rights. To sum up, to prove the illegality of indirect patent infringement, it is necessary to prove the existence of direct infringement or patent implementation. In my opinion, in order to better safeguard the interests of the patentee, it is unrealistic to prove the existence of direct infringement or patent implementation on the basis that the patentee proves that the indirect infringer provides "special goods" and there is subjective intention. Accordingly, when judging the losses suffered by the patentee, we can calculate the decrease in sales of patented products from the number of "special products" provided by the indirect infringer. At this time, the indirect infringer can prove that the "special product" provided by him is used by the patentee, for example, the repair behavior after exhaustion does not constitute re-creation. (II) Damage Facts-Unauthorized patent exploitation and loss of interests Damage facts refer to the objective facts that some behaviors infringe the rights of the right subject and cause loss of interests. It consists of two elements, one is the infringement of rights, and the other is the objective result of the infringement of rights leading to the loss of interests. For the infringement of patent rights, the behavior of the actor must first cause or may cause the infringement of patent rights in order to constitute indirect patent infringement. Because the patent right is mainly the prohibition right, that is, the act of prohibiting others from exploiting their patents without authorization, as long as the indirect infringement of the patent causes or may cause others to exploit the patent without the authorization of the patentee, it constitutes the infringement of the patent right, and the infringer may be required to bear the responsibility of stopping the infringement, removing obstacles and eliminating dangers. Secondly, in order to constitute the liability for damages, there must also be the loss of interests caused by the infringement of rights, usually manifested as the loss of negative property, that is, the reduction of available interests, such as the loss of profits caused by the reduction of sales of patented products. The calculation of this part of the loss of available benefits will be elaborated in detail in the fourth part. The loss of the patentee's interests also includes some direct losses, which are manifested in the expenses incurred by the patentee in going to court to protect the patent right, including attorney's fees, transportation expenses and reasonable expenses paid for investigating and stopping the infringement. (3) Causality-Causality in tort law refers to the relationship between illegal acts and damage facts. There are many theories to judge causality, including condition theory, cause theory and considerable causality theory. If the causation theory is used to judge the causality between indirect patent infringement and damage facts, it is obviously not causality. Because the indirect infringement of patent is "indirect" because its damage to patent right is indirect, only a condition, not a direct cause, and it is the patent implementation that directly leads to the damage. But the problem of causality can be solved well by using the theory of considerable causality. Indirect patent infringement is one of the conditions that lead to patent damage. In most cases, direct infringement will be difficult or delayed if there is no inducement and help from indirect patent infringers to provide "special goods". Moreover, indirect patent infringement will not make the chain of causality too long, because it is limited to the level of causality with the occurrence of patent implementation, that is, there is a direct causal relationship between indirect patent infringement and patent implementation, and subjective intention in the composition of indirect patent infringement will also exclude some behaviors from liability. (4) Subjective fault-the intentional subjective fault of "luring" and "helping" refers to the psychological state of the actor when deciding his behavior. The degree of fault can be divided into intentional, gross negligence, concrete negligence and abstract negligence. The traditional theory has always believed that "the distinction between intention and negligence is of great significance in criminal law for conviction and sentencing, but in civil law, under normal circumstances, it has no practical significance for determining the civil liability of the actor." Because the assumption of civil liability is completely determined by the fact of damage, the intentional injury of the actor to others is exactly the same as the injury caused by negligence. "Indirect patent infringement is an unusual situation, that is, the actor is only responsible for it intentionally. The determination of indirect patent infringement in China is relatively strict. This is also related to China's technological development level and patent awareness. China's patent awareness is relatively weak, and the quantity and quality of its own patents are difficult to compare with those of developed countries, mainly industrial processing. Therefore, if the composition of indirect patent infringement is relaxed, many enterprises in China will face infringement charges. If in doubt, you can also provide online consulting services for lawyers. You are welcome to have legal consultation.
Legal objectivity:
How to identify indirect patent infringement? Indirect infringement includes two elements: behavior and illegality. "For infringement, when there is a prohibition of infringement in civil law, illegality is a violation of the prohibition of civil law; When there is no prohibition of infringement in civil law, the right to protect rights is created on the basis of civil law, and the right is endowed with the characteristics of preventing infringement. Illegality is the inviolability of violating rights. Therefore, under the existing legal framework of our country, it is necessary to distinguish different situations to judge the illegality of indirect patent infringement. In general, the occurrence of direct infringement is the premise of the formation of indirect patent infringement, and it is stipulated that even if there is no direct infringement in special circumstances, the indirect patent infringer can be investigated for tort liability. Regarding the former, it is easy to judge the illegality of indirect patent infringement. As long as they constitute the same infringement, the whole act violates the prohibitive provisions of the patent law and is illegal. At this time, we need to pay attention to the proof of direct infringement, that is, use the principle of universal coverage to judge whether the technology involved in this implementation is covered by patent claims. Regarding the latter, that is, how to judge the illegality of indirect patent infringement when the patent implementation behavior is personal non-profit implementation or is not regarded as infringement in law? The basis is that the actor violated the obligation of inviolability of rights. The Patent Law defines individual non-profit patent implementation behavior and patent implementation behavior after the exhaustion doctrine Principle as non-infringement behavior. The reason is that when the patent law gives the patentee a certain monopoly right to stimulate creation, it is necessary to strike a balance between the interests of the patentee and the public, so as to help others continue to innovate or recognize certain interests on the basis of patented technology; However, the implementation of these non-infringing patents is kept in a very narrow range because of the limitation of other factors or the limitation of the actor's own ability, which does little harm to the interests of the patentee. However, the appearance of indirect patent infringement has broken this balance, making a large number of individuals who do not have the ability to implement patents, causing great losses to the interests of patentees and infringing their patents. However, because the indirect infringement of patent is indirect to the infringement result, that is, it affects the damage result through direct infringement or the intermediary of patent implementation, so when it does not constitute joint infringement, it only needs subjective fault judgment from the perspective of inviolability of infringing rights. Because if the actor is not at fault subjectively, it is difficult to determine the relationship between indirect patent infringement and patent implementation, and it is impossible to determine that the loss of the obligee is caused by the indirect patent infringement of the actor, and there is a fault in the causal relationship, so it cannot be determined that it constitutes infringement. At this point, the judgment of illegality needs to be comprehensively analyzed with other factors, and at the same time, it needs to prove the existence of patent enforcement, because without patent enforcement, there will be no infringement results. Regarding the situation that the direct infringement occurs or may occur abroad, it can be handled with reference to the non-profit behavior of the above-mentioned individuals or the behavior that is not regarded as infringement by law. According to the regionality of patent rights, the implementation of overseas patents cannot be regarded as patent infringement, but the indirect infringement of domestic patents will have a great impact on the export sales of patented products, thus causing great damage to the interests of patentees and constituting an infringement on the inviolability of rights. To sum up, to prove the illegality of indirect patent infringement, it is necessary to prove the existence of direct infringement or patent implementation. In my opinion, in order to better safeguard the interests of the patentee, it is unrealistic to prove the existence of direct infringement or patent implementation on the basis that the patentee proves that the indirect infringer provides "special goods" and there is subjective intention. Accordingly, when judging the losses suffered by the patentee, we can calculate the decrease in sales of patented products from the number of "special products" provided by the indirect infringer. At this time, the indirect infringer can prove that the "special product" provided by him is used by the patentee, for example, the repair behavior after exhaustion does not constitute re-creation. (II) Damage Facts-Unauthorized patent exploitation and loss of interests Damage facts refer to the objective facts that some behaviors infringe the rights of the right subject and cause loss of interests. It consists of two elements, one is the infringement of rights, and the other is the objective result of the infringement of rights leading to the loss of interests. For the infringement of patent rights, the behavior of the actor must first cause or may cause the infringement of patent rights in order to constitute indirect patent infringement. Because the patent right is mainly the prohibition right, that is, the act of prohibiting others from exploiting their patents without authorization, as long as the indirect infringement of the patent causes or may cause others to exploit the patent without the authorization of the patentee, it constitutes the infringement of the patent right, and the infringer may be required to bear the responsibility of stopping the infringement, removing obstacles and eliminating dangers. Secondly, in order to constitute the liability for damages, there must also be the loss of interests caused by the infringement of rights, usually manifested as the loss of negative property, that is, the reduction of available interests, such as the loss of profits caused by the reduction of sales of patented products. The calculation of this part of the loss of available benefits will be elaborated in detail in the fourth part. The loss of the patentee's interests also includes some direct losses, which are manifested in the expenses incurred by the patentee in going to court to protect the patent right, including attorney's fees, transportation expenses and reasonable expenses paid for investigating and stopping the infringement. (3) Causality-Causality in tort law refers to the relationship between illegal acts and damage facts. There are many theories to judge causality, including condition theory, cause theory and considerable causality theory. If the causation theory is used to judge the causality between indirect patent infringement and damage facts, it is obviously not causality. Because the indirect infringement of patent is "indirect" because its damage to patent right is indirect, only a condition, not a direct cause, and it is the patent implementation that directly leads to the damage. But the problem of causality can be solved well by using the theory of considerable causality. Indirect patent infringement is one of the conditions that lead to patent damage. In most cases, direct infringement will be difficult or delayed if there is no inducement and help from indirect patent infringers to provide "special goods". Moreover, indirect patent infringement will not make the chain of causality too long, because it is limited to the level of causality with the occurrence of patent implementation, that is, there is a direct causal relationship between indirect patent infringement and patent implementation, and subjective intention in the composition of indirect patent infringement will also exclude some behaviors from liability. (4) Subjective fault-the intentional subjective fault of "luring" and "helping" refers to the psychological state of the actor when deciding his behavior. The degree of fault can be divided into intentional, gross negligence, concrete negligence and abstract negligence. The traditional theory has always believed that "the distinction between intention and negligence is of great significance in criminal law for conviction and sentencing, but in civil law, under normal circumstances, it has no practical significance for determining the civil liability of the actor." Because the assumption of civil liability is completely determined by the fact of damage, the intentional injury of the actor to others is exactly the same as the injury caused by negligence. "Indirect patent infringement is an unusual situation, that is, the actor is only responsible for it intentionally. The determination of indirect patent infringement in China is relatively strict. This is also related to China's technological development level and patent awareness. China's patent awareness is relatively weak, and the quantity and quality of its own patents are difficult to compare with those of developed countries, mainly industrial processing. Therefore, if the composition of indirect patent infringement is relaxed, many enterprises in China will face infringement charges.