The object of this crime is a complex object, which not only infringes on the normal activities of the national patent administration department, but also infringes on the patent rights of units or individuals. With the establishment and improvement of the socialist market economic system, it is necessary not only to clearly stipulate the licensing and protection of patent rights for scientific and technological inventions and creations in law to encourage inventions and safeguard patent rights and national interests, but also to protect the patent rights and interests of patentees and countries according to law. Therefore, it is necessary to severely crack down on counterfeit patents that infringe others' patents and the national patent management system constitutes a crime.
The Patent Law of People's Republic of China (PRC) stipulates the crime of counterfeiting patents, which was adopted by the Fourth Session of the Sixth NPC Standing Committee on March 6, 2003 and revised on September 4, 2002. Article 63 of this law stipulates: "Anyone who imitates another person's patent shall be dealt with in accordance with the provisions of Article 60 of this law; If the circumstances are serious, the person directly responsible shall be investigated for criminal responsibility in accordance with the provisions of Article 127 of the Criminal Law. " (Article 127 of the former Criminal Law is now Article 2 13 of the Criminal Law). This law makes it an independent crime, which is of great significance for standardizing the patent management system, protecting the patent right of invention and creation, encouraging, popularizing and applying invention and creation, and promoting the development of science and technology. Patent system is a legal system generally adopted by all countries in the world, and it is the inevitable product of the development of productive forces. The formulation and implementation of the patent law provides a powerful legal weapon for protecting the patent right of invention and creation, encouraging and popularizing the application of invention and creation, promoting the progress of science and technology and accelerating the socialist economic construction. According to the patent law, the patent right shall be granted by the state upon application by the parties concerned and examination and approval. The patentee who enjoys the patent right has the right to manufacture, use and sell the patent within the time limit prescribed by law, and others must obtain the consent of the patentee to manufacture, use and sell the patent. Due to the protection of the patent law, the number of projects, promotion and patent applications that China applies for patent protection to the patent administration authorities has greatly increased every year, and many foreign inventors have applied for patent protection in China. However, we should also see that counterfeiting other people's patents and infringement of patent rights occur from time to time. 1979 article I27 of the criminal law only stipulates the crime of counterfeiting registered trademarks, and there is no content of counterfeiting patents. Although the law stipulates that corresponding administrative sanctions or economic sanctions should be imposed on those who infringe patent rights, due to the lack of necessary criminal penalties, the criminal acts of infringing patent rights can not be effectively curbed, counterfeit patents are repeatedly banned, the interests of patentees are greatly lost, and the patent management system is seriously damaged. The patent law defines the act of counterfeiting others' patents as the crime of counterfeiting patents, and it is an objective requirement to crack down on such crimes and make up for the shortcomings of the criminal law to punish them according to the criminal responsibility of counterfeiting trademarks. This article clarifies and stipulates the punishment of this crime, which will be of great significance to crack down on counterfeiting of patents.
Objective elements
Objectively, this crime is manifested as a serious act of violating the provisions of the national patent management regulations and impersonating a patent that someone or a unit applied to the national patent authority within the validity period stipulated by law and was approved after examination. According to the provisions of China's patent law, the owner and holder of the patent right (that is, the patentee) enjoys the exclusive right to use the patent. Without the permission of the patentee, no unit or individual may exploit its patent, that is, it shall not manufacture, use, sell its patented products or use its methods for production and business purposes except as provided by law.
1. The act of counterfeiting other people's patents is mainly manifested in two aspects: the act of marking, pasting or falsely using the patentee's name, patent name, patent number or other patent marks in advertisements related to products without the consent of the patentee. Because the patented product enjoys a high reputation among the public, the actor takes advantage of the public's trust in the patented product to counterfeit the patent, making the public believe that the product he produces is produced, used or sold by the patentee, or is produced, used or sold with the permission of the patentee, thus obtaining huge illegal benefits.
Patents refer to inventions, including inventions, utility models and designs. As two patents of invention and utility model, it must be novel, creative and practical. As a design, it should be different from or not similar to the design published in domestic and foreign publications or publicly used at home and abroad before the application date. These characteristics of patent determine that it can win a high reputation among the public. Moreover, the counterfeiter who commits the above-mentioned counterfeiting acts is to convince the public that the product is produced, used or sold by the patentee, or is produced, used or sold with the permission of the patentee, so as to obtain illegal benefits.
2. The act of exploiting a patent without the permission of the patentee, that is, illegally manufacturing, using or selling its patented products or using its patented methods for the purpose of production and operation without the permission of the patentee. As the object of this crime, the patent must have been applied to and approved by the State Patent Office. The application method must be written, and the oral application is invalid. Among them, to apply for a patent for invention or utility model, an application, specification, abstract, patent claim and other documents shall be submitted. To apply for a patent for design, an application form, pictures or photographs of the design and other documents shall be submitted, and the products using the design and their categories shall be specified. Patents that have not filed an application, filed an application orally or filed an application in writing, but have not been approved by the authority with the power of examination and approval, are not protected by law.
3. The act of counterfeiting patent must occur within the term of patent right. In order to prevent the patentee from monopolizing technology indefinitely and hindering technological progress, the patentee can only enjoy the exclusive right to use his invention and creation within the statutory time limit. Article 45 of the Patent Law stipulates the duration of the patent right. The term of the invention patent right is 15 years, counting from the date of application; The term of a patent for utility model and design is five years, counting from the date of application. Before the expiration, the patentee may apply for a three-year extension. After the expiration of the patent term, inventions are no longer protected as patents, and there is no problem of counterfeiting inventions.
4. When dealing with counterfeit patent cases, it is necessary to distinguish whether the patent right has been infringed. Article 62 of the Patent Law stipulates that the following acts are not regarded as patent infringement:
(1) using or selling patented products manufactured by the patentee or licensed for sale by the patentee;
(2) Using or selling a patented product that the patentee knows is manufactured or sold without the permission of the patentee;
(3) Having manufactured the same product, used the same method or made necessary preparations for its manufacture and use before the patent application date, and continuing to manufacture and use it only within the original scope;
(4) Foreign means of transport passing through the territory, territorial sea and airspace of China temporarily use the relevant patents in their devices and equipment for their own needs according to the agreement signed between their countries and China or the international treaties to which * * * is a party, or according to the principle of reciprocity;
(5) using the relevant patents exclusively for scientific research and experiments. Failure to implement patent infringement does not constitute a crime of counterfeiting patents.
Theme element
The subject of this crime is the general subject. Any natural person who has reached the age of criminal responsibility and has the ability of criminal responsibility can constitute this crime. According to Article 220th of this section, a unit can also be the subject of this crime. If a unit commits this crime, it shall be punished for several crimes, fined, and the directly responsible person in charge and other directly responsible personnel shall be investigated for criminal responsibility in accordance with the provisions of this article.
subjective factor
Subjectively, this crime must be intentional, that is, knowing that you are counterfeiting and infringing others' patents, but still deliberately carrying out this act. Negligence does not constitute this crime. As for the motives of crime, there are various, some for profit, some for honor, some for damaging the reputation of others and so on. But whatever the motive, it does not affect the establishment of this crime.