Opening Pandora’s Box — Going through 10 years, It Starts to Close the Loopholes of U.S. Method Patent Infringement by Akamai Case

• Main Authors: Lu, Ding-Chung, 魯定中
• Other Authors: Liu, Shang-Jyh
• Format: Others
• Language: zh-TW
• Published: 2017
• Online Access: http://ndltd.ncl.edu.tw/handle/ak3chj

碩士 === 國立交通大學 === 科技法律研究所碩士在職專班 === 105 === Patent is an intangible property and method patent is the intangiblity of intangiblilty because the attached are invisible steps, procedures or abstract system. Since the deployment of Internet technology twenty years ago and technology development of smart phone in last ten years, it makes human business behavior entering intangible e-business model and is involved in a lot of method patents and corresponding technologies. There is no limitation for method patent in the infringement part of US patent law, but intense arguments were induced based on liability of infringement entities in the beginning of this statute. According to the Akamai case running for near ten years litigation, there are a lot of challenges and discussions to this argument. This article is staring from multiple entities divided infringement in method patent and trying to study and explore the historic deveopment, related cases and jurisprudences evolution. Applying traditional jurisprudences and statues including agency thory, varcious liability, joint tort liability and joint enterprise, strict liability of direct infringement and so on, to this article explores the evolution of multiple entities patent infringement rules, tests and modifications of jurisprudence. For example, jurisprudence based on joint tort law and agency in common law, joint infringement based on cooperation and “some connections”, single entity rule based on “direct and control” and rules according to United States Court of Appeals for the Federal Circuit’s (CAFC) first and the second en bance decisions. Since BMC case in 2007, various tests and rules were proposed including direct or/and control from mastermind with contract obligation and ageny relationship, partial inducement only, all steps rule, joint enterprise and so on. The conservative and unreasonable single entity test since 2007 was relaxed until CAFC’s en banc decision of Akamai case in 2015. A new test balancing all of aspects was provided and the multiple entities infringement in method patent was back to a baseline. However, the arguments in method patent in not limited in the obove topic only. After gradually solving the issue of multiple entities infringement, extraterritory issue would be the next battlefield of method patent infringement. The next topic in this article will be discussed is corresponding statues, cases and rules for US method patent extraterritoric infringement. To explore the former applications and future challenges of US patent law and related items with extraterrotory infringement including§271(a)、§271(f) and§271(g); meanwhile, Microsoft and NTP cases represent the viewpoints of extraterrotory infringement from supreme court and CAFC individually in past ten years. Under the trend of co-working model of globalization, how will the judicial system (court) and legistative system (congress) face and handle this situation? Because of the speciality of method patent in essentially, it had been received special treatments from all aspects and fields due to its intangibility. Facing current and future technological and commocial development to intangible environment, US patent system may encounter more severe challenges than multiple entities divided infringement. These have been emerged in definitions of product, component, inport/export and supply in method and software patents. Due to the properties of Internet and digital information, it involves issues of patent regulation and enforcement. This article is ended via the application and future challenge of artificial intelligence (AI) because all could be invisible in this system. Combining method patent, multiple entities, extraterrotity, digital component and product, big data and Internet, even the identification of plantiff and defandent, this will be the largest challenge faced by US patent system since industrial revolution!