The challenge and path of constructing China's patent indirect infringement system

Abstract

According to the "comprehensive coverage principle", the patent infringement should meet all the technical characteristics of the patent right to be established, but in practice, there is a situation, that is, to provide a patent component or implementation method of a patent step and provide assistance, or intentionally instil others to commit a specific infringement. If the perpetrator does not carry out the act controlled by the exclusive right of intellectual property, but helps or ABETS others to carry out the act controlled by the exclusive right of intellectual property, how to regulate the above behavior, there is a solution strategy of introducing the indirect infringement system of intellectual property in theory. The legitimate basis for the existence of indirect infringement system of intellectual property rights is to prevent intellectual property rights from being overhead and deep pocket rules. Based on the existing judicial interpretation, this paper summarizes the specific problems faced by indirect patent infringement in China through statistical analysis of relevant cases in practice, analyzes the rationality and feasibility of the construction of this system from the perspectives of jurisprudence and law and economics, and compares the relevant provisions of foreign countries. This paper provides suggestions and references for establishing indirect infringement clauses in the Patent Law in the future from the aspects of clarifying the nature and legislative mode of indirect infringement, the specific components of determining infringement, the liability of infringement and the causes of exemption.