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.
| Published in | International Journal of Law and Society (Volume 4, Issue 3) |
| DOI | 10.11648/j.ijls.20210403.17 |
| Page(s) | 203-208 |
| Creative Commons |
This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited. |
| Copyright |
Copyright © The Author(s), 2021. Published by Science Publishing Group |
Patented Process, Divided Infringement, Direct Infringement, "Control or Direction" Rule
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APA Style
Zhang Xiaodong, Zhang Bingjian. (2021). Research on Divided Infringement Judgment of Patented Process in China. International Journal of Law and Society, 4(3), 203-208. https://doi.org/10.11648/j.ijls.20210403.17
ACS Style
Zhang Xiaodong; Zhang Bingjian. Research on Divided Infringement Judgment of Patented Process in China. Int. J. Law Soc. 2021, 4(3), 203-208. doi: 10.11648/j.ijls.20210403.17
AMA Style
Zhang Xiaodong, Zhang Bingjian. Research on Divided Infringement Judgment of Patented Process in China. Int J Law Soc. 2021;4(3):203-208. doi: 10.11648/j.ijls.20210403.17
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Download@article{10.11648/j.ijls.20210403.17,
author = {Zhang Xiaodong and Zhang Bingjian},
title = {Research on Divided Infringement Judgment of Patented Process in China},
journal = {International Journal of Law and Society},
volume = {4},
number = {3},
pages = {203-208},
doi = {10.11648/j.ijls.20210403.17},
url = {https://doi.org/10.11648/j.ijls.20210403.17},
eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20210403.17},
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.},
year = {2021}
}
TY - JOUR T1 - Research on Divided Infringement Judgment of Patented Process in China AU - Zhang Xiaodong AU - Zhang Bingjian Y1 - 2021/08/31 PY - 2021 N1 - https://doi.org/10.11648/j.ijls.20210403.17 DO - 10.11648/j.ijls.20210403.17 T2 - International Journal of Law and Society JF - International Journal of Law and Society JO - International Journal of Law and Society SP - 203 EP - 208 PB - Science Publishing Group SN - 2640-1908 UR - https://doi.org/10.11648/j.ijls.20210403.17 AB - 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. VL - 4 IS - 3 ER -
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