4.3.3 Joint infringement and aiding and abetting infringement
4.3.3.1 Joint infringement
Joint patent infringement refers to two or more persons conspiring or cooperating to perform acts that infringe patent rights. Various provisions of the Civil Code apply to the determination of such infringement. Article 1168 of the Civil Code stipulates the following: “Where two or more persons jointly commit a tortious act causing damage to another person, they shall bear joint and several liability.” With respect to the bearing of liabilities for joint infringement, external liability and internal liability are distinguished. In the former case, the co-infringers are jointly and severally liable. According to Article 178 of the Civil Code, joint and several liability is an overall liability to an external party. Thus, the right holder has the right to request some or all of the persons jointly and severally liable to bear the liability. In other words, each person liable bears full liability for the infringement.
In a retrial of a dispute over invention patent infringement, SMC Inc. v. Leqing Zhongqi Pneumatic Technology Co.,91 the Supreme People’s Court held that joint infringement has the following prerequisites: the infringers are two or more persons; each infringer subjectively has the joint intent; there is mutual use, cooperation or support between the acts of the infringers seen from an objective perspective; and the consequences of the damage resulting from the acts of each infringer falls within the scope of their joint intent.
Joint infringers are jointly and severally liable for acts of joint infringement. In an appeal of a dispute over utility model patent infringement, Dongguan Hongding Home Co. v. Dongguan Kangsheng Furniture Co.,92 the Supreme People’s Court held that, if some co-infringers have settled with and made compensation to the right holder for part of their losses, the remaining co-infringers will only be jointly and severally liable for compensation to the right holder for its losses as a result of the infringement after deducting the paid compensation, to avoid double enrichment of the right holder.
4.3.3.2 Abetting and aiding infringement
Article 1169 of the Civil Code stipulates the following:
A person who aids or abets an actor in the commission of a tortious act shall assume joint and several liability with the actor.
A person who aids or abets an actor with no or limited capacity for performing civil juristic acts in the commission of a tortious act shall assume tort liability. The guardian of the actor with no or limited capacity for performing civil juristic acts shall assume corresponding liability where he/she fails to fulfill the duties of a guardian.
Article 21 of the Interpretation (II) of Patent Infringement Dispute Cases stipulates the following:
Where a person knows that the relevant product is a raw material, equipment, component, or intermediate specially used for exploiting a patent, provides, without the authorization of the right holder and for production and business purposes, such a product to another person to commit patent infringement, the right holder’s assertion that the provider’s acts constitute aiding infringement shall be supported by the people’s courts.
Where a person knows that a product or a process has been granted a patent right actively induces, without the authorization of the right holder and for production and business purposes, another person to commit patent infringement, the right holder’s assertion that the inducer’s acts constitute abetting others to commit infringement […] shall be supported by the people’s courts.
In a retrial of a dispute over utility model patent infringement, Liu Hongbin v. Beijing Jinglianfa Digital Control Technology Co.,93 the Supreme People’s Court held that aiding infringement, in the context of the Patent Law, does not refer to just any kind of aiding act but specifically refers to the act of providing to others a product specially used for infringement, to commit patent infringement without the authorization of the patentee and for production and operation purposes. If an actor knows that the relevant product is a raw material, equipment, component or intermediate specially used for exploiting the technical solution of the patent, and provides this to another party without the authorization of the right holder and for production and business purposes, and that other party subsequently commits patent infringement, then the actor’s act of providing the product constitutes aiding others to commit patent infringement.
The “specially used product” is identified against the criterion of whether the raw material, product, component or intermediate is of substantial significance for realizing the technical solution protected by the patent and has “substantial non-infringing usages.” If the raw material or product is indispensable for realizing the technical solution protected by the involved patent and has no other “substantial non-infringing usage” than for use in the protected technical solution, then the raw material or product is generally identified as being “specially used.” The right holder bears the burden of proving that the relevant product is “specially used.”