Research on Divided Infringement Judgment of Patented Process in China

For patented process, there may be a problem of divided infringement caused by multiple parties performing part of the method steps separately, especially in the field of electronic communication. Because there are some obstacles in the law and the traditional patent infringement theories, it is quite difficult to deal with the issues of divided infringement in China, whether direct infringement theory or indirect infringement theory is adopted. Some relative China judicial cases had attempted to breakthrough these obstacles, however, the authority rule is still not established. This paper firstly introduced three China cases -Watchdata v. Hengbao, Xidian Jietong v. Sony, and Dunjun v. Jixiang Tenda, then tried to learn from U.S. cases. After years of judicial experience, the U.S. courts paid more attention to the actual behavior of dominant party and have gradually established “control or direction” rule under the direct infringement theory when meeting divided infringement. Based on the analysis of relevant theories and cases, this paper suggests to make an judicial interpretation for “use the patented process” in rule 11 of patent law of China, and construct “control or direction” rule in China by diluting the subjective requirement of conscious connection by parties, investigating the major party of the key steps in executing the patented process to solve the problem of divided infringement.