Opening Pandora’s Box — Going through 10 years, It Starts to Close the Loopholes of U.S. Method Patent Infringement by Akamai Case
|關鍵字:||方法專利;分工侵權;代理理論;單ㄧ實體準則;共同侵權責任;替代責任;專利跨域侵權;metod patent;divided infringement;agency theory;vicarious liability;single entity rule;patent extraterritory infringement|
美國專利法侵權部分並未對方法專利設限，但是在該法條初始的侵權方部分，就掀起相當大的爭議。以最近十年訴訟將結尾的Akamai案而言，對此爭議做了相當大的挑戰與討論。本文即以方法專利的複數方參與的分工侵權為始， 探討此議題的歷史脈絡、相關案件與法理的發展。應用相關傳統與既有的法理與法條，包含代理理論、替代責任、共同侵權責任與聯合企業、直接侵權的嚴格責任等，探討複數方專利侵權的準則與法理演進: 如基於聯合侵權與代理人法、基於合作與「部分連結」的聯合侵權、基於「指揮與控制」的聯合侵權與聯邦巡迴上訴法院基於Akamai案的第ㄧ、二次全院聯席的教示。自2007年BMC案起，也提出了不同的檢驗準則，如策劃協條方的指揮與控制及合約義務與代理的地位、部分誘引侵權、全步驟檢驗、聯合企業……等。經由2015年聯邦巡迴上訴法院的全院聯席，打破了自2007年以來保守而不合理的單ㄧ實體準則，提出ㄧ較能兼故各方的新檢驗，回歸到方法專利侵權方的基本面。
Patent is an intangible property and method patent is the intangiblity of intangiblilty because the attached are invisible steps, procedures or abstract system. Since the deployment of Internet technology twenty years ago and technology development of smart phone in last ten years, it makes human business behavior entering intangible e-business model and is involved in a lot of method patents and corresponding technologies. There is no limitation for method patent in the infringement part of US patent law, but intense arguments were induced based on liability of infringement entities in the beginning of this statute. According to the Akamai case running for near ten years litigation, there are a lot of challenges and discussions to this argument. This article is staring from multiple entities divided infringement in method patent and trying to study and explore the historic deveopment, related cases and jurisprudences evolution. Applying traditional jurisprudences and statues including agency thory, varcious liability, joint tort liability and joint enterprise, strict liability of direct infringement and so on, to this article explores the evolution of multiple entities patent infringement rules, tests and modifications of jurisprudence. For example, jurisprudence based on joint tort law and agency in common law, joint infringement based on cooperation and “some connections”, single entity rule based on “direct and control” and rules according to United States Court of Appeals for the Federal Circuit’s (CAFC) first and the second en bance decisions. Since BMC case in 2007, various tests and rules were proposed including direct or/and control from mastermind with contract obligation and ageny relationship, partial inducement only, all steps rule, joint enterprise and so on. The conservative and unreasonable single entity test since 2007 was relaxed until CAFC’s en banc decision of Akamai case in 2015. A new test balancing all of aspects was provided and the multiple entities infringement in method patent was back to a baseline. However, the arguments in method patent in not limited in the obove topic only. After gradually solving the issue of multiple entities infringement, extraterritory issue would be the next battlefield of method patent infringement. The next topic in this article will be discussed is corresponding statues, cases and rules for US method patent extraterritoric infringement. To explore the former applications and future challenges of US patent law and related items with extraterrotory infringement including§271(a)、§271(f) and§271(g); meanwhile, Microsoft and NTP cases represent the viewpoints of extraterrotory infringement from supreme court and CAFC individually in past ten years. Under the trend of co-working model of globalization, how will the judicial system (court) and legistative system (congress) face and handle this situation? Because of the speciality of method patent in essentially, it had been received special treatments from all aspects and fields due to its intangibility. Facing current and future technological and commocial development to intangible environment, US patent system may encounter more severe challenges than multiple entities divided infringement. These have been emerged in definitions of product, component, inport/export and supply in method and software patents. Due to the properties of Internet and digital information, it involves issues of patent regulation and enforcement. This article is ended via the application and future challenge of artificial intelligence (AI) because all could be invisible in this system. Combining method patent, multiple entities, extraterrotity, digital component and product, big data and Internet, even the identification of plantiff and defandent, this will be the largest challenge faced by US patent system since industrial revolution!