Abstract
For patented process, there may be a problem of divided infringement caused by multiple parties performing part of the method steps separately, especially in the field of electronic communication. Because there are some obstacles in the law and the traditional patent infringement theories, it is quite difficult to deal with the issues of divided infringement in China, whether direct infringement theory or indirect infringement theory is adopted. Some relative China judicial cases had attempted to breakthrough these obstacles, however, the authority rule is still not established. This paper firstly introduced three China cases -Watchdata v. Hengbao, Xidian Jietong v. Sony, and Dunjun v. Jixiang Tenda, then tried to learn from U.S. cases. After years of judicial experience, the U.S. courts paid more attention to the actual behavior of dominant party and have gradually established “control or direction” rule under the direct infringement theory when meeting divided infringement. Based on the analysis of relevant theories and cases, this paper suggests to make an judicial interpretation for “use the patented process” in rule 11 of patent law of China, and construct “control or direction” rule in China by diluting the subjective requirement of conscious connection by parties, investigating the major party of the key steps in executing the patented process to solve the problem of divided infringement.
Highlights
In recent years, China has developed rapidly in the fields of electronic-communication, software, and information handing, resulting in many patented process
There is conflict between the “divided infringement” with the “full coverage” principle under the traditional direct infringement theory in China because “Full coverage” principle means all technical features in the claims are involved [2] and one party must perform all the steps of the claim of the patented process [3]
We have found that the direct infringement theory is the best choice when encountering divided infringement
Summary
China has developed rapidly in the fields of electronic-communication, software, and information handing, resulting in many patented process. Innovators in the industry are extremely concerned about whether their patents can be effectively protected. Since the technologies in these fields often need to be presented in the form of multi-step method claims involving multiple parties, so resulting in whether divided infringement can be identified as patent infringement and how to regulate it effectively. The typical divided infringement appears as: different parties have performed part steps of patented process respectively, and the addition of each part constitutes the entire content of the claim of the patented process. The results are often as follows: there is no party who has completely performed the whole steps, so it is difficult to meet the traditional patent infringement rule.
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