Patent Infringement in Bidding_Is the Bid Organizer Liable

专利侵权案例∣招投标、委托加工中的共同侵权问题：中标人实施了他人专利，招标方算不算侵权

市场活动中经常会有招投标或者代加工等经济行为。招投标或者代加工时，也经常会遇到专利或其它知识产权的持有人不能中标但中标的方案或中标人使用的方案是未中标的专利持有人的专利方案；或者承揽或接受委托加工时，由甲方提供技术方案，乙方需要按照甲方提供的方案加工产品。

根据我国专利法等知识产权相关法律规定，未经权利人许可，实施专利权人的技术，属于侵权行为。在招投标或者代加工活动中直接制造、实施者是法律上的主要侵权人，但作为招标方、定制人是不是侵权呢？

（2020）最高法知民终212号、（2019）最高法知民终181号两个案例明确“招投标关系中指定技术方案的招标方、加工承揽关系中提供技术方案的定作人实质上决定了专利技术方案的实施，他们与中标方、承揽人等直接实施专利的主体构成专利共同实施者。

案例一：工程施工专利侵权案（招投标）

甲（原告、上诉人）是：某专利持有人

乙（被告、上诉人）是：某土地治理工程的施工方（中标方）

丙（被告、被上诉人）是：工程的管理机关（招标方）

丁（被告、被上诉人）是：工程招标文件的制作方（招标公司）

The case is that B used A’s patented technology in the project, and A requested the first instance court: B should compensate for the economic losses, and C and D should bear joint and several liability.

The court of first instance held that the scheme used by B (the successful bidder) fell within the scope of protection of the patent right involved in the case, and its construction behavior constituted infringement; D was a bidding company, and its behavior of preparing bidding documents and organizing bidding activities according to the scheme provided by C (the tenderer) could not be identified as “implementation” of infringement as stipulated in the Patent Law, so D (the bidding company) did not infringe; C (the tenderer) was a state administrative agency, and its organization of the project was a public welfare project, which was the performance of the duties of the administrative agency, not a production and operation activity. C (the tenderer)’s request to use the patented scheme was not an infringement and did not constitute infringement. Therefore, the court only ordered B (the successful bidder) to compensate A for 120,000 yuan, and rejected A’s other claims.

甲乙均不服，分别向最高人民法院提起上诉，乙（中标方）认为其实施的方案虽然侵权但有 合法来源，丙（招标方）和丁（招标公司）应该承担侵权责任。二审中甲放弃了对招投标公司丁（招标公司）的诉讼请求。

最高法认为： although the person who finally implemented the behavior was B (the successful bidder), C (the tenderer) had clear requirements for the construction method in the engineering bidding documents and the engineering construction contract, and the construction method fell within the protection scope of the patent right involved in the case. In essence, it was C (the tenderer)’s behavior that determined the implementation of the final construction technical plan. Therefore, C (the tenderer)’s behavior used the patent method involved in the case. 此外，从丙（招标方）与乙（中标方）之间就涉案工程进行招标、投标、中标并签订工程施工合同的过程来看，应当认定双方之间存在共同使用涉案专利方法的意思，故应当认定双方共同实施了侵权行为。最高法的最终判决结果是乙（中标方）、丙（招标方）构成共同侵权，共同赔偿甲45万元。

案例二：床架卡口专利侵权案（委托加工）

In Case 2, the patent owner’s patent is a bed frame clip. Distributor B commissioned manufacturer A to process these patent infringement products according to the technical solutions provided by B. A manufactured and sold them to B, who sold them to C, who finally sold them to D College and used them in student dormitories.

Patent Infringement in Bidding_Is the Bid Organizer Liable_Relationship diagram

In the first instance lawsuit, C reached a settlement with the patent owner and compensated the patent owner 90,000 yuan, and the patent owner withdrew the lawsuit against C. During the trial, the court of first instance held that the alleged infringing products fell within the scope of protection of the patent right involved in the case of the patent owner; A was the manufacturer of the alleged infringing products and sold them to B, and finally sold them to D through B and C. The patent owner did not provide evidence to prove that B and D “knew” that the products provided by A were patent infringement products, so the patent owner’s request for compensation for losses was not supported. D used the alleged infringing bed frame buckle in student dormitories, and stopping its use might cause unnecessary waste, so it was not necessary to stop using it and did not need to bear compensation liability. Therefore, the court of first instance ruled that A and B should stop infringing, A should compensate the patent owner for economic losses of 100,000 yuan, and rejected the patent owner’s other claims.

The SPC held in the second instance that: B’s defense of legitimate source and only sales behavior was wrong. 在委托加工专利产品的情况下，如果委托方要求加工方根据其提供的技术方案制造专利产品，则可以认定是双方共同实施了制造专利产品的行为。 The product of the alleged patent infringement is the manufacturing technical solution provided by B to A. A manufactured the product that falls within the scope of patent protection according to B’s requirements. The relationship between B and A is not a sales contract relationship, but a commissioned processing contract relationship. The two jointly implemented the behavior of manufacturing and selling the alleged infringing products. They should bear joint and several liability for all infringement damages based on the same infringement damage facts and should jointly and severally compensate.

原文链接：专利侵权案例∣招投标、委托加工中的共同侵权问题：中标人实施了他人专利，招标方算不算侵权
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