Legal Regimes on Indirect Patent Infringement: Empirical Studies of Taiwanese Judicial Decisions and Regulatory Recommendations

Legal Regimes on Indirect Patent Infringement: Empirical Studies of Taiwanese Judicial Decisions and Regulatory Recommendations

 

Title
Legal Regimes on Indirect Patent Infringement: Empirical Studies of Taiwanese Judicial Decisions and Regulatory Recommendations
Author
Richard Li-Dar Wang, Shih-Min Chen
Keywords
Contributory Infringement, Active Inducement, Joint Infringement,
Article 185 of the Civil Code, Intent and Negligence
Abstract
The indirect infringement of patents denotes that the actor contributes to or actively
induces patent infringements finished up by others, so that contravening indirectly
the exclusive rights of patentees. For the purpose of assuring effective patent
protection, countries such as the United States, Japan, United Kingdom and Germany
all have instituted legal regimes addressing this type of patent infringement.
Taiwan has not yet established such a scheme in its patent law. The pertinent regulations
in the United States and European countries are hence carefully analyzed in
this article, serving as a point of reference for reviewing and reflecting Taiwanese
draft provisions on indirect infringement, which once emerged in the process of
patent law revision concluded in 2012. In the meantime, Article 185 of the Civil
Code is another possible basis for patent indirect infringement, which imposes legal liability on joint tortfeasors. The authors survey judicial decisions of the past 10
years that referred this article in patent cases, investigating the real contour of indirect
infringement in the courtroom. The finding shows that such cases are rarely
alleged and decided in the court proceedings. In the few judgments that the courts
ruled indeed on that issue, indirect infringement was held predicated upon direct
infringement. That position results in no one being liable for the patent infringement
if the direct infringer commits no negligence, no matter whether she is manipulated
by indirect infringers behind the scene. The courts also diverged on mens
rea and covered contributory acts of the indirect infringers. In light of those survey
results, it would be advisable that the patent law institutes express provisions regulating
indirect infringement, so as to prevent infringers from manipulating innocent
others and circumventing due liabilities.
Abstract Article

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