Among the top five countries who have filed the most patent applications under the Patent Cooperation Treaty (“PCT”) in 2015, China is the only country that has no provision regarding contributory patent infringement. As a result, in patent cases related to contributory infringement, different courts have adopted different criteria to determine whether contributory patent infringement is present. This has resulted in many problems in China, causing confusion and conflicts in understanding among patent holders and the public.
With the increase of patent infringement cases in China, legislation on the standard of contributory patent infringement is imminent. This Article puts forward a proposal for such a provision, which includes a four-factor test for contributory patent infringement that would be added to Chinese patent law by surveying the doctrine of contributory infringement in the United States, Japan and Germany, along with the current legislative and judicial situation in China. Since the legislative history and current situation in China differ from the United States, Japan and Germany, the proposed provision for contributory patent infringement differs from the equivalent provision found in the laws in those countries. However, the proposed provision could maintain a good balance between the interests of patent rights holders and the public. The provision would also likely be accepted by the legislative institutions and courts of China. This proposal helps unify criteria for judging contributory patent infringement and encourages innovation in China, advancing the global harmonization of patent law.
Putting The Pieces Together: A Proposal For a Contributory Infringement Provision In Patent Law,
Chi.-Kent J. Intell. Prop.
Available at: https://scholarship.kentlaw.iit.edu/ckjip/vol15/iss2/7