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Clarifying the legal composition of indirect infringement of patent rights can not only strengthen patent protection, but also promote free competition in the market of patent products and parts; the defendant's subjective "knowledge" is not an independent legal composition of indirect infringement of assisted patent rights, and only in this way can the indirect infringement of assisted patent rights stipulated in Interpretation II be distinguished from the infringement of assisted patent rights stipulated in Article 9 of the Tort Liability Law; the indirect infringement of the help-type patent right is premised on the direct infringement of the patent right by others, has the attribute, and is limited to the act of providing products specifically for the infringement of the patent right; the patentee can choose the indirect infringer as the defendant alone, and the court does not need to add the direct infringer as the defendant.

1. of Interpretation II to clarify the significance of the legal composition of indirect infringement of patent rights

Patent infringement judgment generally adopts the principle of comprehensive coverage, except for the principle of equivalence, only the act of manufacturing or selling materials, equipment, parts, intermediates, etc. (hereinafter referred to as special supplies) for the production of patented products, or inducing others to infringe the patent right, does not directly infringe the patent right. In judicial practice, although judges cannot invoke the provisions of the Patent Law to determine that such acts constitute direct or indirect infringement of patent rights, they can still invoke the provisions of Article 9 of the Tort liability Law to determine that such acts constitute aiding or abetting the infringement of patent rights, and invoke the provisions of Article 15 of the Tort liability Law to sentence the perpetrator to stop manufacturing or selling or abetting, and bear joint and several liability for compensation. However, Article 9 of the Tort Liability Law is aimed at all aiding and abetting infringements, rather than specifically at aiding or abetting infringements of patent rights, and therefore technically it is not possible to clarify the legal composition of aiding or abetting infringements of patent rights. This situation can easily lead to different geographical judges with judicial discretion, different court judges apply the legal composition of aiding and abetting the infringement of patent rights, grasp the different degrees of leniency and strictness, resulting in judicial disunity and damage to judicial authority. The more worrying result is to hinder free and fair competition in the market for patented product parts and components, and harm consumer welfare. Too strict judicial interpretation of the legal composition of aiding and abetting the infringement of patent rights, although it promotes free and fair competition in the market for patented product parts, may reduce the enthusiasm of patentees to innovate, resulting in insufficient supply of new inventions. On the contrary, the judicial interpretation of the legal composition of aiding and abetting the infringement of patent rights is too loose. Although it may extend the protection of patent rights, promote innovation, and increase the supply of new inventions and creations, it is easy to cause the patentee to monopolize the patented product parts market, which is not conducive to free and fair competition in the patented product parts market, reducing consumer choice opportunities, and harming consumer welfare in terms of product price and quality. In order to protect patent rights and promote innovation, while preventing monopolies in the patented product parts market from hindering free competition in that market and thus increasing consumer welfare, it is necessary to clarify the legal composition of aiding and abetting patent infringement.

On March 22, 2016, the Supreme People's Court issued 《(II) on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Disputes(hereinafter referred to as "Interpretation II")Article 21 clearly stipulates the legal composition of aiding and abetting the infringement of patent rights, that is, indirect infringement of patent rights,It was a timely response to those needs. Its most direct significance is that,It draws a clear line between indirect infringement of patent rights and the legal manufacture and sale of materials, equipment, spare parts and intermediates used in the production of patented products, and provides clear guidance and expectations for the perpetrators. it provides a clear standard for judicial organs at all levels to uniformly grasp the leniency and strictness of the legal composition of indirect infringement of patent rights.

Of course, "Interpretation II" has just been published, and new problems have emerged in practice. How courts at all levels should specifically apply the provisions of Article 21 of "Interpretation II" remains to be studied. This paper takes the first paragraph of Article 21 of Interpretation II as the starting point to explore the understanding and application of indirect infringement of assisted patent rights, so as to provide a theoretical reference for the accurate application of this paragraph by courts at all levels.

The Subjective "Knowing" Problem of Indirect Infringers of 2.-assisted Patent Rights

Article 21 of Interpretation II provides for two types of indirect infringement of patent rights, namely, aiding indirect infringement and inducing indirect infringement. In the legal composition of indirect infringement of assisted patent rights, the first paragraph of Article 21 of "Interpretation II" requires the perpetrator to "know that the relevant products are materials, equipment, parts, intermediates, etc. that are specially used for the implementation of patents". How should this provision be interpreted? The author believes that in order to realize the interesting purpose of the first paragraph of Article 21 of Interpretation II to strengthen the protection of patent rights, and to straighten out the relationship between Article 21 of Interpretation II and Article 9 of China's Tort Liability Law, the "knowledge" in the first paragraph of Article 21 of Interpretation II can only be interpreted as the same sentence that "the relevant products are materials, equipment, parts, intermediates, etc. specially used to implement patents, or two sides of one. that is to say,As long as it is judged from the objective use, the product in question is a special product, it should be directly presumed that the actor is subjectively "knowingly", and the patentee does not have to provide additional evidence to prove whether the actor is subjectively "knowingly".In other words,In the legal composition of the indirect tort of help, the subjective "knowledge" of the perpetrator cannot be treated as an independent constituent element. This interpretation of the "knowledge" stipulated in the first paragraph of Article 21 of the "Interpretation II" is mainly based on the following reasons.

First, it can reduce the burden of proof of the patentee, so as to achieve the purpose of strengthening patent protection in the first paragraph of Article 21 of Interpretation II.

Second, only in this way can the first paragraph of Article 21 of interpretation 2 be independent of Article 9 of the Tort liability Law and obtain independent applicable value. This can be illustrated by the comparative method.

When Japan re-enacted the "only indirect infringement" in the new article 101 of the current patent law in 1959, it was envisaged that the actor was required to subjectively "for the purpose of infringing patent rights and knowing that it is mainly used for infringing patent rights". However, the final legislative text completely deleted this requirement and adopted the objective requirement that the only function of parts and components is to manufacture patented products or implement patented methods.①That is to say, according to the provisions of the first and third paragraphs of Article 101 of Japan's current patent law, as long as parts and components meet the requirement that the only function is to manufacture patented products or implement patented methods, the provision of parts and components and other providers for the purpose of production and operation constitutes an indirect infringement of patent rights and must be independently subject to the patentee's right of claim (in Japan's patent law, the right to request a stop includes the right to stop infringement, the right to prevent infringement, the right to request the abandonment of the infringement result, the right to request the removal of the infringement equipment, and the right to request other acts necessary to prevent infringement. See Article 100 of the Japanese Patent Law.) and claim for damages.

Why does the Japanese Patent Law delete the subjective element requirement of the actor of the role-only indirect infringement of patent rights? The reason is that although Article 101 of the Japanese Patent Law created a new role-only indirect infringement of patent rights in 1959, it is only a special provision based on the particularity of patent rights and the joint infringement of Article 719 of its Civil Code. According to the provisions of Article 719 of the Japanese Civil Code, even if the materials, equipment, parts and intermediates used for the production of patented products or the implementation of patented methods are the most common materials, equipment, parts and intermediates in the market, there is no unique function as mentioned in Article 101 of the Japanese Patent Law. As long as the actor subjectively knows that others are infringing patent rights and provides them, his behavior will be the same as that of others directly infringing patent rights, constitute joint infringement of patent rights.②As a result, Article 101 of the Japanese Patent Law requires that the only objective use of parts and components is to manufacture patented products or implement patented methods, and at the same time requires the providers to know the only objective use subjectively. From the perspective of the Patent Law, it will be difficult to investigate the indirect tort liability of the suppliers whose only role is to infringe the patent rights of others due to the increased burden of proof of the patentee. From the perspective of the Civil Code, it will result in a significant reduction in the scope of the determination of joint infringement of patent rights under Article 719. This will completely deviate from the original intention of the new article 101 of the patent law to set up a unique indirect infringement to extend the protection of patent rights.

On the contrary, after Article 101 of the Japanese Patent Law deletes the element that the actor subjectively "aims to infringe the patent right and knows that it is mainly used to infringe the patent right", all relations will be smooth. On the one hand, the only function of parts and components is to manufacture patented products or implement patented methods. According to Article 101 of the Japanese Patent Law, regardless of whether the suppliers of parts and components know it subjectively or not, their actions constitute indirect infringement of help-type patent rights. The patentee can exercise the right to claim damages and the right to claim damages. On the other hand, when parts and methods are the most common and common commodities or methods in the market, if the actor knows that others are using them to infringe the patent right and still provides them, according to Article 719 of the Japanese Civil Code, the act of providing them constitutes an assisted joint infringement. The patentee can only exercise the right to claim damages in accordance with the provisions of Article 719 of the Civil Code, but cannot exercise the right to stop.

Interpreting the "knowingly" stipulated in the first paragraph of Article 21 of Interpretation II as an independent legal composition of indirect infringement of assisted patent rights will obviously also face the same problem as the unique indirect infringement of patent rights established in Article 101 of the Japanese Patent Law in that year. It can be seen that only the "knowingly" stipulated in the first paragraph of Article 21 of the "Interpretation II" can be interpreted as the same term or two sides of the same body that "the relevant products are materials, equipment, parts, intermediates, etc. specially used for the implementation of patents", and adopt a completely objective approach, only in this way can the indirect infringement of assisted patent rights stipulated in the first paragraph of Article 21 of Interpretation II be truly independent from the general joint infringement (assisted infringement) stipulated in Article 9 of China's Tort Liability Law, and the interesting purpose of stifling the provision of specialized goods can be realized quickly and independently by reducing the burden of proof that the patentee proves whether the perpetrator knows subjectively. Otherwise, the first paragraph of Article 21 of Interpretation II may be superfluous. Because even without this paragraph, the court can solve the problem of the characterization of the provision of special supplies and the responsibility by invoking and interpreting the tort of assistance stipulated in Article 9 of the Tort Liability Law.

The Legal Composition of Indirect Infringement of 3. Help Patent Right

On the basis of the interpretation of the second part of the above, the author believes that when applying the first paragraph of Article 21 of Interpretation II, the judicial organs should grasp the legal composition of indirect infringement of assisted patent rights as follows.

(I) relevant products are materials, equipment, parts and components, intermediates, etc. specially used for the implementation of patents.

First of all, the relevant products must be materials, equipment, parts, intermediates, etc. used to implement the patent, including materials, equipment, parts, intermediates, etc. used to manufacture the patented product, and materials, equipment, and equipment used to implement the patented method. Parts, intermediates, etc.Materials, equipment, parts, intermediates, etc. that are not used to implement a patent but are used to use or transfer a patented product are not the object of indirect infringement of an assisted patent right. For example, when the purchaser uses the carbonized film with a thickness of 0.525mm-0.313mm manufactured and sold by the defendant, it will fall within the range of 0.25mm of the technical characteristics of the plaintiff's patented invention due to wear and tear. Therefore, the plaintiff claims that the carbonized film manufactured and sold by the defendant is the only material used to produce patented products. However, the Tokyo District Court held that the indirect infringement of the patent right requires the defendant to use the relevant product for the implementation of the patent, excluding the act of using it only according to the purpose of the relevant product itself, so the defendant's act does not constitute indirect infringement of the patent right.③

As for the materials, equipment, parts, intermediates, etc. manufactured and sold by the defendant, they are used to implement the same or equivalent technical characteristics as the patented invention, and do not affect the establishment of indirect infringement.④

Secondly, the relevant products are special supplies, that is, materials, equipment, parts, intermediates, etc., which are specially used for the implementation of patents, and there are no other uses.The so-called materials, equipment, parts, intermediates, etc. specially used for the implementation of patents refer to the materials, equipment, parts, intermediates, etc. that do not have other commercial and economic practical uses from the perspective of general social concepts, and have multiple uses or have not been actually put into use but only have abstract practical uses or experimental uses, materials, equipment, parts or intermediates that cannot be considered to be used exclusively for the implementation of patents.

Whether parts and components have other uses, the Osaka District Court in Japan heard a classic case called "decorative makeup board. The focus of the dispute in this case is whether the "rivet through the middle of the columnar crimping material made of synthetic resin elastic material" produced and sold by the defendant belongs to the only material used to implement the wall surface of the decorative makeup plate combined with the implementation method patent. The defendant claimed that the rivet could be used for (1) interior decoration, (2) display of clothes and groceries, (3) fixation of calendars and posters, (4) fixation of curtains, etc., (5) indoor routing of copper wires, etc. The Osaka District Court held that when rivets are used in (1) to (4), there is a danger of scratching hands and feet because the head of the rivets is usually in an extended state. When rivets are used in (4), there is also a danger caused by the rivets damaging the network wires inside the distribution wires. Therefore, the use claimed by the defendant cannot be considered to have other practical uses. Since the purpose claimed by the defendant was not actually put into use, the Osaka District Court found that the rivets produced and sold by the defendant had a sole purpose, which constituted an indirect infringement of the patent right.⑤

When the defendant's product is used to implement the patented invention while also performing other functions, can it be determined that the use of the defendant's product is specialized? In the case of "placement method of position reconciliation", when the defendant's product performs the function of making the water flow gather to the central position of the circuit board, it is bound to be accompanied by the effect of cleaning the pollutants attached to the circuit board by the water flow. Both the Tokyo District Court of the first instance and the Tokyo High Court of the second instance held that the attached cleaning function did not have economic and commercial practical use, therefore, it is affirmed that the defendant's product belongs to the only product used to implement the patented invention, which constitutes indirect infringement of the patent right.⑥

From a purely technical point of view, the defendant's product can be used to implement the patented invention, but because the price is too high, the demander does not actually use the defendant's product, that is, from an economic and commercial point of view, it is impossible to use the defendant's product to implement the patented invention. Can the specificity or uniqueness of the defendant's product be determined at this time? In the "CE CUP BB" case heard by Hamamatsu of Shizuoka District Court in Japan, the products manufactured and sold by the defendant can be completely used to manufacture patented hypoeutectic products from a purely technical point of view, but the products generally used to manufacture hypoeutectic products are priced between 140 and 150 yen, while the defendant's products are priced at 180 yen. It is absolutely unnecessary for demanders to use the defendant's products with higher prices, from an economic and commercial point of view, it is impossible for the defendant's product to be used to implement the patented invention, but the Hamamatsu court of the Shizuoka District Court of Japan still found that the defendant's product was a product with the sole function and constituted indirect infringement of the patent right.⑦

In addition, whether the other uses of the defendant's product exist as a fun part or as a functional use does not affect the establishment of the defendant's product with other uses.⑧Even if the defendant's product is used for other purposes after the "redundant" part, it does not prevent the determination as having other uses. For example, in the "SLR camera case" heard by the Tokyo District Court, the defendant claimed that the exchange lens it manufactured and sold could be used not only on patented products, but also on non-patented products such as Minolta and Canon. Therefore, it does not meet the "uniqueness" requirement. In response, the plaintiff argued that when the defendant's product was installed on other cameras of non-patented products, the front aperture lock lever and other parts of the defendant's product could not be used and became redundant, thus meeting the unique requirements. In this regard, the court held that the front aperture locking lever or connecting rod in the defendant's product was not used and became redundant. It cannot be said that there were no other functions, but the functions were not brought into play. Moreover, the defendant's product itself was installed on as many types of cameras as possible as a selling point. Therefore, the defendant's product was installed on cameras with different composition from the cameras involved. From the general concept of society, it has economic and commercial practical use, does not belong to the only type of product used, and does not constitute indirect infringement of patent rights.⑨

Two other issues are worth studying.The first is the time judgment point when the product is a material, equipment, parts, intermediates, etc. that is specifically used to implement the patent.In this regard, the famous Japanese intellectual property law expert Notohiro Nakyama realistically believes that the end of the oral debate between the plaintiff and the defendant should be used as the point of judgment rather than when the infringement occurred. ⑩ The reason is that when the defendant's products have other uses at the end of the oral arguments between the plaintiff and the defendant, if it is still determined that the defendant's actions constitute indirect infringement, the exclusive effect of the patent right will be unduly extended to markets such as product parts and components that have nothing to do with the patent claim, thus harming free competition.

The second is the burden of proof that the product is a material, equipment, parts, intermediates, etc. that is specifically used to enforce the patent.According to the general principle of who claims and who gives evidence, it seems that the patentee should bear the burden of proving that the defendant's product is material specifically used to enforce the patent. However, since the plaintiff must prove the uniqueness of the use of the defendant's products by excluding all possibilities of other uses of the defendant's products, it is almost impossible for the plaintiff to fulfill this burden of proof. In short, the patentee's "specialized" burden of proof will greatly increase its burden of proof, which is inconsistent with the interesting purpose of Article 21 of Interpretation II to strengthen the protection of patent protection. Conversely, it is extremely easy for the defendant to prove that its products are not materials, equipment, parts, intermediates, etc., specifically used to enforce the patent. This is because the defendant can completely refute the patentee's claim of "specialization" by citing any one instance to prove that his product has a real economic and commercial utility.

The (II) supplies the product to others for the purpose of production and business without the permission of the patentee.

First, with the permission of the patentee, the materials, equipment, parts, intermediates, etc. that are specifically used to enforce the patent are provided to others.Whether or not others have implemented the patented technology means that the patentee has waived the right to exercise the right to cease infringement and the right to claim damages against the licensee.

Secondly, the perpetrator must be for the purpose of production and operation.The purpose of production and operation emphasizes that the degree of industrialization of the materials, equipment, parts and intermediate objects specially used for the implementation of patents provided by the actor to others has nothing to do with whether the actor is actually profitable or not, even if it is for the purpose of retaliating against the patentee or for the purpose of currying favor with the patentee. If the degree of industrialization reaches the degree of damage that the patentee cannot tolerate, it must also be interpreted as the purpose of production and operation, which may constitute indirect infringement of patent rights.

Third, the perpetrator must provide special supplies to others."Provision" does not refer to the mere manufacture or import of special supplies, but to the sale, rental, gift, etc. of special supplies that have been or can be obtained by others. The mere manufacture or import but not the diffusion of specialized goods to the market through sale, rental, gift, etc., such as storage in warehouses, cannot be interpreted as an act of "provision" here. The act of manufacturing or importing, and at the same time selling, renting or giving special supplies is of course the act of "providing" special supplies.

(III) others have committed acts of infringement of patent rights