What is "know or should know" itself is a puzzling question, but we can at least say that "know" means that the claimant (hereinafter referred to as "the claimant" collectively refers to the patentee and the interested party) already knows the fact that the right has been infringed, that is, the infringement referred to in the Patent Law [1], while "should know" means that the claimant does not know the existence of the infringement. The law thinks that he "should know", although the claimant may not actually know, but this ignorance is often caused by the claimant's own reasons, so it is deliberately ignored by the law.
"Know" is a subjective concept. Strictly speaking, only the claimant knows the existence of infringement, and no one else can and cannot be responsible for the claimant. However, this does not mean that "knowing" is a completely illusory concept that outsiders simply cannot grasp. "Know" means an internal state of the requester, which is often manifested by some external behavior and thus perceived by others, who infer the requester's "know" by virtue of this perception.
"Should know" is also a highly subjective concept, even stronger than "know" (but in judicial practice, "should know" is often easier to prove), because it adds a highly subjective concept of "should" to "know". Specifically, "should know" has at least the following three meanings: (1) It means that the actor did not know; (2) the actor may already know; (3) It is the actor's own reason that causes the actor to know but fail to know this consequence. In other words, the actor could have known about the existence of the infringement, but he failed to know about the existence of the infringement for some reasons of his own.
Because "should know" is a subjective concept, it shows a certain subjective psychological state of the actor, which is often expressed in real life through the specific behavior of the actor and touched by others, who rely on this touch to understand, explore and judge the subjective psychological state of the actor. For example, in a case, the defendant used the plaintiff's patented technology for a long time to produce a certain product and sold it in a large number of areas including the plaintiff's location for a long time. Then, the plaintiff can't take ignorance of the existence of infringement as a defense that the statute of limitations has expired. Because, according to the fact that the defendant used the plaintiff's patented technology for a long time to produce a certain product and sold it in a large number of areas including the plaintiff's location for a long time, any normal and reasonable person can infer that the plaintiff has enough or enough opportunities to know about the defendant's infringement, or at least should know. That's enough. Whether the plaintiff really knows the existence of infringement is not very important. If the plaintiff really doesn't know about the infringement, it just shows the plaintiff's own negligence and disregard for personal rights. The legal proverb says very clearly that "the fact itself proves the fault", and there is no need for the law to provide protection for such a careless obligee.
Another question worth discussing here is whether it is necessary to stipulate "knowing" and "should know" at the same time in our laws. Looking up relevant foreign laws, we can find that the wording of Article 24C of the Federal Republic of Germany Utility Model Law is "know", but there is no word "should know". The wording of Article 13( 1) of the Canadian Uniform Trade Secrets Law is similar to "discover", "should be discovered with reasonable care" and "be discovered". The author agrees with the provisions of the current law, that is, it is absolutely necessary to stipulate "knowing" and "should know". In a specific case, if the defendant has sufficient evidence to prove that the plaintiff has "learned" the defendant's infringement and has been lazy to exercise his rights, this is naturally a good defense, but it puts a higher burden of proof on the defendant. Because "knowing" is more of a subjective concept, this higher burden of proof often makes the defendant feel incompetent. Therefore, it is relatively easy for the defendant to bear the burden of proof that the plaintiff "should know". As long as the defendant can prove that there are enough facts to show that the plaintiff, as a reasonable and normal person, should know his behavior, there is no need to prove whether the plaintiff actually knows it, which greatly reduces the burden of proof of the defendant, and is also conducive to urging the plaintiff to care about and earnestly exercise his rights and maintain the stability of social relations. In the above example, as long as the defendant can prove that he really used the plaintiff's patented technology for a long time without the plaintiff's legal authorization, and sold this product in large quantities for a long time, and this sales also included the plaintiff's area, then, according to common sense, any normal rational person (including the plaintiff) is in the plaintiff's position, so he can know, or at least should know, the defendant's infringement. It can be seen that "knowing" requires the defendant to bear a higher burden of proof for his defense, while "should know" only requires the defendant to bear a relatively low burden of proof. When the defendant can't prove that the plaintiff has "learned" the defendant's behavior, it is undoubtedly an effective method suitable for China's national conditions.
Second, the object of "knowing" or "should know": tort, infringer? Or both?
China's patent law and its implementing rules clearly stipulate that only "infringement" is "known" and "should know". [2] Then, a question arises: What should the claimant do if he can't know the infringer within two years after learning of the infringement? Can the plaintiff sue? How to sue? According to article 108 of China's civil procedure law, the plaintiff in civil litigation must have a clear defendant. According to this, it is obvious that the claimant cannot ask the people's court for protection.
This phenomenon is not uncommon in patent infringement. The market of a country or region is usually huge, and it is often difficult for claimants to monitor the changing market at all times, so it is not easy to find infringement. For the claimant, it is even more difficult to catch the infringer while identifying the infringement, especially in the current situation of international economic integration and transnational trade becoming quite common. The claimant should catch the infringer so smoothly in a short time and find out who the infringer is. One of the main ways for the claimant to find the infringement is to speculate and confirm the existence of the infringement through the infringing product, and then find the infringer. When products that are completely or basically the same as patented products or products produced by patented technology appear in the market, it is first necessary to judge whether these products are products produced by the patentee or products legally authorized by the patentee. If not, the existence of infringement can be presumed. According to the provisions of China's patent law, the limitation of action of the claimant starts from this time. An obvious problem is that at this time, the claimant did not know who the infringer was and could not sue at all, but the statute of limitations has been ruthlessly calculated. This is obviously unfair to the claimant. In fact, it is generously giving the claimant rights that cannot be realized at this time. At the extreme, this even reflects the insult of the law to the claimant.
Let's look at how the relevant laws of other countries are stipulated. Article 24C of the Utility Model Law of the Federal Republic of Germany stipulates that the limitation of action for infringement is three years, counting from the date when the claimant learns of the infringement and the infringer. It can be seen that German law requires the claimant to know the object of "tort and infringer". Comparing with China's patent law, it can be found that in the Federal Republic of Germany, the starting date of the limitation of action of the claimant is the day when he knows about the "tort and infringer". If he only knows the existence of infringement, it doesn't matter, he can go to the infringer calmly. According to the law of our country, the claimant is not so calm. Once he knows the existence of infringement, the statute of limitations begins to calculate. Therefore, the only thing he can do at this time is to find the infringer quickly, and he must find the infringer within two years and sue the court correctly. Otherwise, he can't count on the protection of judicial organs. This gives us no reason not to doubt whose interests our laws protect.
The author thinks that the object of "knowing" or "should know" should be the infringer and the infringed. If you only know the infringement and don't know the infringer, then the claimant will become a dead letter because he doesn't know the specific infringer. If we only know the infringer, we can't verify his infringement, can we? Strictly from the semantic point of view, this statement itself is illogical: since it is impossible to verify the infringement, how can we verify the subject of the infringement, that is, the infringer? If the infringer has been verified, then, from a legal point of view, the basis of verification should be that the infringer has committed an infringement, and this behavior has also been verified. Therefore, it is inappropriate for the claimant to know the infringer without verifying the infringement. At most, it can be said that the claimant knows the "suspected infringer" (quasi-infringer). In fact, even if the "infringement suspect" is determined, it is based on the "infringement suspect". If the object of "knowing" or "should know" is only the infringement suspect and the specific infringement has not been verified, the result is almost the same as defining the infringement object as "knowing" or "should know", which is not conducive to the protection of legal rights at all. One of the conditions for prosecution stipulated in Article 108 of China's Civil Procedure Law is that the prosecution must have "specific claims, facts and reasons". If the claimant fails to verify his alleged infringement, how can there be the "facts and reasons" required by this law? Therefore, it is inappropriate and one-sided to define the tort or infringer as the object of "knowing" or "should know" and start to calculate the prescription on this basis, which is not conducive to the protection of the obligee. Accurately speaking, the object of "knowing" or "should know" is the infringer and the infringed, both of which are indispensable. Only when the claimant for compensation "knows" or "should know" the tort and infringer can the right of action endowed by law be truly realized, and the calculation of the limitation of action is meaningful.
[1] Strictly speaking, whether the claimant knows or should know the factual state of infringement or the perpetrator, or both, is a controversial topic, and it is also a question to be discussed in the next part of this article. Therefore, in this part, the author temporarily describes the behavior that the claimant knows or should know as "infringement" as stipulated in the Patent Law and its implementing rules.
[2] See Article 6 1 of the Patent Law of People's Republic of China (PRC) and Article 77 of the Detailed Rules for the Implementation of the Patent Law of People's Republic of China (PRC).