供應鏈上的專利保護與利益平衡︰專利間接侵權案例研究

Abstract

Traditional patent system only protects patented products or products obtained by patented methods. If we strictly follow the "patentability" standard, it is necessary to rely on flexible application of infringement rules in order to strengthen innovation protection in supply chain. If industrial products are excluded from patent protection, it is difficult to cut off the supply chain of infringement production, and the infringer may also use the patented technology in the form of industrial products. However, if the protection extended to industrial products, it would largely restrict business freedom of industrial enterprises, and even brings inconvenience to the use of patented products.

Along with increasing participation of Chinese companies in global economic activities, considerable number of them have engaged in processing foreign patented products for a long time, which aggravates controversial debates on whether extending patent protection to industrial products in the supply chain. Among them, indirect infringement of patent right is the most typical one during legislative discussion. Chinese academia has always been opposing the extension of patent protection for the guarantee of industrial safety. They believe that extending patent protection would inevitably restrict the trade freedom of industrial products, sacrifice interests of most processing companies, and affect domestic industrial safety. They even take it as an intended obligation imposed by developed countries and so should be resolutely resisted. This kind of hostility existed for a long time which largely affects the development of relevant system and provisions of judicial interpretations. However, through quantitative and qualitative analysis of 80 written judgments of the indirect infringement during 2000-2018, the author found that courts in mainland China paid considerable attention to specificity characteristics between industrial products and patent technology solutions in deciding whether there is patent infringement imposed by industrial companies. By analyzing specificity characteristics and combining with the application of liability principle, Chinese courts have in fact extended the protection of patented product or method to industrial products in the supply chain. This shows that the protection of patent can break through the limitation of the scope of patent authorization provided with elements of specificity characteristics. This finding is in contrary to scholars’ rejective attitude towards indirect infringement rules in the process of Patent Law revision, and is also different from the mainstream theory that takes indirect infringement as a special joint infringement. The argument against the indirect infringement rule also argues that separate legislation goes beyond the minimum protection level of the TRIPS agreement, which involves the balance of interests arising from the protection of intellectual property rights in the global supply chain between developed and developing countries.

Along with the growing connection between intellectual property (IP) protection and international investment and trade, indirect infringement cases adjudicated by Chinese courts ever since the entry of WTO also proves that China, as member of developing countries, does not completely reject appropriate extension of patent protection for industrial products. Stimulating innovation by rule of law is Chinese choice when dealing with vertical competition in supply chain. As a measure to further incentivize innovation and invention, the indirect infringement rule is conducive to promoting technology trading in the supply chain and optimizing resource allocation, which is justifiable economically. It is of great significance to mainland China, who is transforming and upgrading from traditional processing industry to innovative service industry. Yet the judicial interpretations have not provided satisfactory answers on this issue. Indirect infringement rules are not blind transplantation of foreign legal systems. This "foreign product" has already taken root in the judicial practice in mainland China and become part of Chinese judicial experience. Such innovation in judicial practice originates from the influence of various internal and external environmental factors, and echoes the new development of tort law theories such as "concomitant infringement", which also confirms the theory of institutional change. Continued hostility towards indirect infringement rules may actually hamper the implementation of the country's "innovation-driven development" strategy. It is not in line with TRIPS objective, and neither is it conducive to attracting foreign capital and advanced technology for developing members, nor is it conducive to the overseas investment and trade of mainland companies during transition period. The above findings help people better understand the efforts made by the courts in mainland China to protect innovation in the process of economic development and transformation, and offers some critical reflection of relevant regulations therein.

Date of Award	31 Jan 2020
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Wenwei GUAN (Supervisor)