Deviating from the Framework of Joint Infringement The Judicial Interpretation II places the act of the perpetrator assisting and instigating a third party to commit patent infringement under the category of aiding and abetting infringement as stipulated in Article 9 of the Tort Liability Law.
According to the theory of joint infringement in traditional civil law, if a third party is instigated or assisted to directly commit an infringement act in the case of communication of intention, the perpetrator and the third party constitute joint infringement and bear joint and several liability.
On the basis of the lack of scientific reasoning on the background of US law, the judicial interpretation transplants and introduces the relevant rules for the judgment of indirect patent infringement, and adopts the dual regulatory path of instigation and assistance under the framework of common infringement.
The inclusion of patent indirect infringement in the scope of joint infringement theory based on common subjective intention communication leads to the conflict and application dilemma between the indirect infringement theory and the existing rule system theory in the mainland, and compresses the space for the application of the patent indirect infringement rule.
Conflict in theoretical construction
First of all, in terms of legal intent, unlike the theory of joint infringement, which emphasizes the communication of the intention of both parties, the patent indirect infringement system emphasizes the unilateral objective acts and subjective state of the inducing and instigating the party, so that indirect infringement that does not directly infringe the patent but seriously endangers the interests of the right holder can be regulated by law, so as to effectively protect the rights and remedies of the patentee.
In the system of joint tort theory, the basis for distinguishing between instigation or aiding and direct harming is that the difference between the primary and secondary roles of the perpetrator in the process of committing the infringement and the strength of the role played by the consequences of the infringement, the instigation and assistance acts are attached to the direct harmful acts and play a secondary auxiliary role. Usually, there is also a corresponding secondary civil liability.
Although the indirect actor only provides special items in the patent harming act. However, the impact on the damage caused by patent infringement and the harmful consequences are indeed substantial and not secondary auxiliary roles.
Conversely, the act of being assisted or induced to directly implement the patented technical solution is not critical. Therefore, treating patent inducement or auxiliary acts as accessory acts under the doctrine of joint infringement is not in line with the logical principle of division of principal and accessory acts in the theory of joint infringement, nor is it in line with the legal intent of the indirect infringement rule.
Secondly, in terms of institutional functions, there are differences between the indirect patent infringement system and the joint infringement system in terms of legal functions and regulatory capabilities and scope.
The doctrine of joint infringement in general tort law mainly solves the problem of bearing the liability of the right holder for the damage caused by the harmful acts committed by subjects in civil activities due to joint infringement intent.
It involves the adjustment of the legal relationship between the infringement acts and consequences between equal subjects, while the patent indirect infringement system aims to solve the legal regulation of the damage caused to the right holder by civil subjects based on indirectly implemented acts in production and business activities.
In essence, it involves the balance between the public interest and the interests of the patentee, while the general theory of joint infringement is difficult to handle the case of indirect patent infringement that is highly specialized and involves complex interest issues.
That is to say, only by making the patent aid-abetting infringement system independent of the joint infringement theory system and introducing special legal provisions in the patent law is conducive to the protection and realization of the interests of right holders, so as to maintain and regulate the competitive order of the technology market and promote the continuous emergence of scientific and technological innovation achievements.
However, incorporating the patent indirect infringement system into the joint infringement theory system for rule structure and interpretation and application will lead to the joint infringement system bearing the burden of the theory that is difficult to explain, and also make the theoretical deduction and application logic of the patent indirect infringement system superficial and simplified.
Finally, from the evolution and evolution trend of the patent indirect infringement system, it presents the evolutionary trajectory and legal phenomenon of breaking away from the joint infringement system and framework and becoming an independent infringement model.
Before the patent indirect infringement system was formally incorporated into the patent law, early judicial practice in the United States adopted the common tort theory path in general tort law for indirect infringement cases, such as Wallace v. The Holmes case embodies the idea of joint infringement.
The court regarded the defendant's manufacturing and sales behavior and the consumer's purchase and assembly behavior as an act of enforcing the patent as a whole, and found that there was a subjective premeditated intention of joint infringement between the two, so it finally found that the manufacturer and the consumer constituted joint infringement.
Since then, legislation and judicial practice have gradually developed a special and independent indirect infringement system to replace the joint infringement treatment model. It can be seen that as far as the legal system is concerned, the indirect patent infringement system in the United States emerged from the theory of joint infringement, gradually developed into an independent specialized patent infringement type and pattern.
In the modernization and transformation of the patent infringement system, the traditional theory of joint infringement is no longer sufficient, and the relevant legal composition and form of liability have changed, such as in terms of the status of the parties as subjects, the joint litigation against the perpetrator has shifted to separate litigation, in the subjective state, from intention contact to intention expression, and in terms of form of liability, it is manifested as a shift from joint and several liability to separate liability.
Therefore, the indirect infringement regulation method under the joint infringement system that exists in a transitional form will eventually be replaced by the self-contained patent indirect infringement system, and this special model should be an inevitable historical choice.
If in the process of transplanting and constructing the patent indirect infringement system, it is included in the framework of the theory of joint infringement, it will undoubtedly deviate from the development trajectory and historical trend of the patent indirect infringement system in the direction of specialization and independence.
Obstacles in the application of the law
Based on the theoretical framework of joint infringement, the instigator and the aiding actor need to communicate with the instigated or assisted actor based on a common intention to commit the infringement as the subjective element for the establishment of joint infringement.
In instigation and infringement, the perpetrator who directly commits the infringement forms an intention to harm based on the subjective instigation of the instigator.
In aiding infringement, assist the perpetrator to provide assistance to the perpetrator who directly commits the infringement, so that he can eventually achieve harm to the right holder.
The communication between the aiding or abetting actor and the actor directly committing the infringement is not based on the common intention of the patent infringer, especially in the Internet era, when the occurrence of patent infringement is transferred to the end of the industry or the consumer end, and there is no joint infringement intention between the product manufacturer and the consumer.
Therefore, there are theoretical difficulties and logical obstacles to the inclusion of aiding or abetting acts within the framework of common tort.
According to the logic of the theory of joint infringement, "instigating or helping others to commit infringing acts" constitutes "indirect infringement", and relies on the establishment of direct infringement by the perpetrator of direct infringement.
For the Mainland Patent Law, the establishment of a patent infringement requires that the subject must be for the purpose of production and operation, otherwise, the exploitation of a patent that is not based on the purpose of production and business does not constitute patent infringement.
Examples include personal use, use for the purpose of scientific research, etc., or use by prior rights holders. As for the actor deliberately omitting a certain technical feature of the patented technical solution, implementing an incomplete technical solution, and realizing the final step of the patented technical solution through the hands of reasonable users of the terminal.
Because there is no direct infringement, even if the acts of the indirect perpetrator seriously harm the interests of the patentee, it is difficult for the right holder to obtain legal remedies, which is obviously unfair to the patentee.
In this regard, some scholars have put forward the independent theory of indirect patent infringement, holding that in the form of non-production and business purposes such as individuals and families, or in the form of use for experimental research, there is no need to take the direct establishment as a prerequisite for the elements of indirect infringement.
Although such a special interpretation can effectively fill the gap in the application of the law, such an exception is only feasible in application and cannot achieve theoretical coherence.
In the process of formulating the judicial interpretation on indirect patent infringement in the mainland, the draft for comments adopted the path of independent indirect infringement that was separated from joint infringement.
In order to harmonize with the doctrine of contributory tort, the "implementation of ... acts" was replaced by "Carried out ... Acts", requiring that the establishment of indirect infringement needs to be based on the termination and establishment of direct infringement as a prerequisite, that is, from "independent theory" to "subordination theory".
Since the judicial interpretation only applies indirect infringement liability within the framework of the joint infringement theory system and system, it is impossible to include patent exploitation for the purpose of helping individuals, families or experiments into the scope of patent regulation, thus greatly reducing the application space and regulatory territory of patent indirect infringement clauses and rules.
The original design intention of weakening the patent indirect infringement system, breaking through the principle of comprehensive coverage, appropriately extending the boundary of patent protection and broadening the scope of exclusive rights and interests. Different from the liability attribution system placed in the doctrine of joint tort, the independent indirect infringement system has greater institutional flexibility and more flexible conceptual extension.
It is necessary to make indirect infringement independent of the existing framework of joint infringement and set it as a self-contained form of patent infringement, which can not only effectively resolve the conflict between joint infringement and indirect infringement at the theoretical level, but also return to the original and original intention of the indirect infringement system.
At the same time, it is necessary to depart from the theory of joint infringement and the institutional framework, so that the rules of indirect patent infringement can cover and apply to patent exploitation for the purpose of helping individuals, families or experiments, build a tighter and more adequate patent rights protection network, and ensure the logical consistency of legal theories in the application of judicial activities.
In addition, an independent indirect infringement system can include patent aiding and abetting acts that are significantly different from aiding and abetting infringement under the joint infringement system at the basic theory and specific application level, and gradually form a mature theory and a complete system that is different from the common infringement logic.
There is controversy in the binary path theory community about the specific types of acts under the patent indirect infringement system as monist and dualistic.
Monists believe that instigation of patent infringement is not substantially different from general instigation of infringement in the field of civil law, and the law does not stipulate the necessity of independent patent inducement infringement rules, so the mainland patent indirect infringement system only sets a one-element legislative model to assist infringement.
Dualist scholars believe that simply regulating infringing "special goods" is not enough to solve the problem of "high cost and poor effect" of patent protection, and that it is necessary to add provisions on "non-exclusive goods" that will be a necessary step in the development of the mainland patent protection system.
As far as international legislation is concerned, the United States, Germany and other countries have adopted the dual regulatory path of inducement-aiding infringement, while Japanese legislation follows the monistic auxiliary infringement theory, with only provisions on aiding infringement but no inducement of infringement.
Specifically, the U.S. patent indirect infringement system, as described above, uses the help-inducement dichotomy; Germany, on the other hand, adopts the dual primary and secondary distinction path of aid-inducement infringement, which is an "atypical binary legislative model", and only under certain conditions, such as the perpetrator's infringement has not yet constituted auxiliary infringement, and the applicable tort law cannot effectively regulate the infringement, the relevant rules of inducement infringement can only be applied.
The Japanese patent indirect infringement system adopts the dichotomy of "special items - non-special articles" under auxiliary infringement, the former does not set requirements for the subjective elements of the perpetrator, while the latter has requirements for this.
Japan's indirect patent infringement system regulates the act of enforcing incomplete patents, and this act also has a high degree of certainty that it will induce the occurrence of patent infringement.
In this system, the distinction is mainly made according to the type of object of the act, and the special patent infringing articles can only be used for the exploitation of the patent and have no other use, without concern whether the actor knows the rights and attributes of the patented product.
It can be presumed that the perpetrator induced a third party to implement the patented technical solution and produce the consequences of patent infringement; In the case of non-exclusive infringing goods, it is necessary to rely on the subjective elements that the perpetrator knows that the invention is a patented invention and that the objects provided by the actor are used to implement the technical solution of the invention.
If the patent indirect infringement system adopts the path of helping infringement to regulate the unitary regulation, it will form a gap in the regulation of non-special products in the system, which is not conducive to the realization of the legal function and institutional value of the patent indirect infringement system to expand the scope of patent protection.
Therefore, from the perspective of regulatory integrity, once the theory of joint infringement and the legislative framework are departed, the patent indirect infringement system should add special provisions for the infringement regulation of non-special items.
For the regulation of the system of indirect patent infringement for non-special goods, the French context of American patents is regulated from the perspective of judging the subjective malignancy of patent infringement induced by the perpetrator, while the Japanese patent law regulates legislation from the perspective of a high degree of certainty that may trigger direct patent infringement.
The Japanese patent indirect infringement system examines the subjective conditions of the actor to determine whether its act constitutes indirect infringement, while the U.S. patent law invokes the patent inducement infringement clause to know that the non-exclusive product is a patented invention and provides it for the exploitation of the patent is only a manifestation of the inducement infringement.
The objective manifestations of inducement infringement also include active inducement by providing drawings, teaching technical solutions, etc., and if only the "special product-non-special product" division path is adopted, some indirect patent infringement may be ignored, causing new regulatory loopholes.
Therefore, the dual regulatory path of lure-help currently adopted by the mainland should be adhered to, so that the scope of the patent indirect infringement system can be more comprehensive, and it is more conducive to safeguarding the interests of right holders and realizing the original purpose and intention of the patent indirect infringement system.