So, under what circumstances does indirect infringement actually occur? This requires a clear understanding of the manifestations of indirect infringement. Academic circles have not yet reached an agreement on the form of indirect infringement. Comprehensive comparison of various viewpoints, indirect infringement should include the following contents:
(1) Deliberately selling, promising to sell or importing key components that can only be used for patented products, or molds specially used for patented products, or machines, equipment or intermediate materials specially used for implementing patented methods; (2) Licensing others to exploit the patented technology without the permission or entrustment of the patentee; (3) The licensee of a patent licensing contract violates the "non-transferability" agreement in the contract and authorizes a third party to exploit the patented technology without authorization; (4) The patentee * * * permits a third person to exploit the patented technology without the consent of other patentees; (5) The trustee of a technical service contract uses the patented technology without the permission of the patentee when the entrusting party solves a specific technical problem; (6) others.
As we all know, direct infringement can be manufactured, sold, promised to be sold, used and imported. However, for indirect infringement, the situation is different. First, the object of indirect infringement is a kind of "article", that is, indirect infringement should deliberately provide related articles for others to implement patented inventions. Second, this kind of "article" is only for special purposes, not for enjoyment. In other words, the object of infringement by the actor can only be an intermediate product used to implement the patent of other people's products or methods, which constitutes a part of the implementation of other people's patented technology (products or methods) and has no other use. Third, indirect patent infringement does not include manufacturing and use, but only sales, promised sales, imports and other acts, which is determined by the nature of indirect infringement. As mentioned above, indirect infringement refers to providing related articles for others to implement patents, and the provided articles themselves are not protected by patents. Therefore, in order to constitute indirect infringement, there must be an offer or sale. If only the related articles are manufactured, but they are not provided or sold to the direct infringer, then there is no connection with the implementation of patented technology, and it is impossible to draw the conclusion that others infringe the patent right. Of course, if the purpose of manufacturing related items is for your own use, you are not going to provide or sell them to the direct infringer at all, let alone indirect infringement. Fourth, the patent that is indirectly infringed can be a product patent or a method patent. For product patents, indirect infringement is manifested as the act of providing, selling or importing raw materials and other parts used to manufacture patented products; For method patents, indirect infringement refers to the act of providing, selling or importing materials, devices and special equipment used to implement the method. And there is a causal relationship between indirect infringement and direct infringement. Whether the establishment of indirect infringement must be based on the occurrence of direct infringement, there are two opinions in academic circles: "independence theory" and "subordination theory". The "independence theory" holds that indirect infringement is stipulated by law or recognized in practice, so as to protect the interests of patentees more effectively, indirect infringement should be independent, and judging whether indirect infringement is established should not be based on the occurrence of direct infringement. The theory of subordination holds that indirect infringement plays an auxiliary role relative to direct infringement, and the establishment of indirect infringement should be based on the occurrence of direct infringement. Without direct infringement, there is no indirect infringement.
An indirect infringer is an infringer of the same nature.
It is argued that the establishment of indirect infringement should be based on the occurrence of direct infringement. The reasons are as follows: (1) According to the current legal basis for determining indirect patent infringement in China, indirect infringers and infringers are of the same nature. Therefore, in the legal recognition, the premise of indirect infringement should be that the person who was instigated or helped committed direct infringement. (2) Judging from the judicial practice in China, when the patentee files an infringement lawsuit, the direct infringer and the indirect infringer are generally listed as * * * co-defendants. When the court hears an infringement case, if it finds an indirect infringer, it will generally notify the plaintiff, who will request the court to add an indirect infringer as a co-defendant. If the patentee only brings an infringement lawsuit against the indirect infringer, the patentee must provide evidence to the court to prove the existence of direct infringement. The United States, where the patent system is relatively developed, has basically adopted this method. (3) acts that constitute indirect infringement may not necessarily constitute direct infringement, such as not aiming at production and operation. However, the act of directly implementing the patented technology must eventually occur, otherwise it will be tantamount to admitting the so-called "partial infringement" theory, undermining the basic principle of "the content of the claim shall prevail" stipulated in Article 56 of the Patent Law, and the result will be equivalent to extending patent protection to non-patented products unrelated to the patented technology, which is a typical abuse of patent rights with serious circumstances. (4) There must be a "close" causal relationship between indirect infringement and direct implementation of patented technology. Only when this causal relationship exists, the actor needs to bear certain joint and several responsibilities. The infringer of indirect patent infringement should have subjective intention.
Of course, for the sake of more protection for the patentee, the law can make relevant exceptions. There are many legislative precedents abroad. China is also starting legislation in this field. For example, Article 79 of the above opinion of Beijing Higher People's Court stipulates: "In the following cases, if the direct infringement is not investigated or is not regarded as patent infringement according to law, the indirect infringer may also be directly investigated for tort liability: (1) This behavior is not regarded as patent infringement as stipulated in Article 63 of the Patent Law; (2) The act belongs to the act of manufacturing or using patented products or using patented methods for personal non-profit purposes. " Article 80 stipulates: "If the direct infringement recognized according to the laws of China occurs or may occur abroad, the indirect infringer may be directly investigated for tort liability." This provides positive help for China to formulate a unified national patent indirect infringement system. Once it is determined that indirect patent infringement is an act of instigating and helping others to commit patent infringement, the infringer of indirect patent infringement should have subjective intention. Generally speaking, the subjective mentality of abetting and helping others is intentional, and abetting and helping behavior does not constitute negligence. In fact, if the negligence liability is investigated like direct patent infringement, it will not only be unfounded in the law, but also bring extra duty of care to the public and cause damage to the actor. Therefore, the legal basis of patent infringement in China has subjective elements and intentional elements. Even in the United States and Germany, indirect patent infringers only assume corresponding responsibilities when they know or obviously know.
The above thoughts on the meaning and elements of indirect patent infringement provide a direction for people to judge indirect patent infringement. We expect our country to improve relevant legislation as soon as possible and build a perfect patent protection system.