A Case Study on the Development of Indirect Patent Infringement

• Main Authors: Chih-Kuan, Shih, 施志寬
• Other Authors: Sung-Mei, Hsiung
• Format: Others
• Language: zh-TW
• Published: 2015
• Online Access: http://ndltd.ncl.edu.tw/handle/57044040283419514279

碩士 === 東吳大學 === 法律學系 === 103 === Under Taiwan patent legal system, with respect to patent infringement claims are stipulated in Article 96, which is limited to direct infringement, i.e. illegally exploit all the technical features limited in a patent claim and thus meet the all-elements rule of patent infringement analysis. However, in theory, if the perpetrator just abetting the direct infringement or knew or should have known to provide substantial aid to direct infringement, it can also be qualified as indirect infringement. In order to adequately protect the interest of patentee, many countries have correspondent provisions to reflect the indirect patent infringement, such as US, Japan, Germany as well as United Kingdom, France and South Korea. Lacking express provisions, China and Taiwan both use traditional joint tortfeasors theory to solve this issue. In Taiwan, Article 185, Paragraph 2 of Civil Code is often used by claimant in most patent litigations related to indirect patent infringement. But most of the cases are dismissed on the grounds that indirect infringement has not been expressly stipulated in the Patent Act, or the suspected infringers didn’t have any intent or negligence apparently, to negate the existence of aiding and abetting conducts. In conclusion, this thesis hopes, in necessity of national economy and social development, the indirect patent infringement may be expressly enacted in the Patent Act to strengthen the patentee protection as well as balancing the interests between public reliance and patentees.