Is the utility model patent a major meritorious service?

Article 78 of China's criminal law stipulates that if a criminal has made inventions or major technological innovations during the execution period, which constitutes a major meritorious service, his sentence shall be reduced. However, there are great differences in judicial practice because there is no clear definition of what is an invention and a major technological innovation in legal and judicial interpretations. At present, there is a problem in practice, that is, whether many criminals can make greater contributions by obtaining utility model patents and whether their sentences should be reduced, and judicial decisions are not uniform in different places. One view is that according to Article 2 of China's Patent Law, "inventions mentioned in this Law refer to inventions, utility models and designs", utility model patents obtained by criminals belong to "inventions and creations" mentioned in Article 78 of China's Criminal Law, which should constitute a significant contribution. Although some criminals' utility model patents have not actually been put into social production and use, creating social and economic benefits, this is only the plot of the length of commutation, and it cannot be denied that criminals' inventions and creations have made great contributions. Another view is that "invention and creation" in the patent law and "invention and creation" in Article 78 of the Criminal Law cannot be equated. Considering the technical content of inventions and their contribution to the country and society, "inventions and creations" in criminal law should only correspond to "inventions" in Article 2 of the Patent Law, and the technical content of utility model patents is lower than that of invention patents. In my opinion, from the perspective of systematic and substantive interpretation of legal provisions, we should refer to the relevant provisions of the criminal law and consider the legislative intention and spirit to determine whether the criminal's patent invention-creation behavior constitutes a major meritorious service. Item (5) of Article 78 of the Criminal Law juxtaposes "invention and creation" with "major technological innovation", and item (6) uses the expression "other major contributions to the country and society" as a general clause when summarizing other major meritorious deeds, indicating that legislators juxtapose "invention and creation" with "major technological innovation" and "other major contributions to the country and society". Therefore, whether a criminal can make a significant contribution by obtaining a patent depends on the specific situation, and it cannot be simply considered that the connotation and extension of Article 2 of the Patent Law and Article 78 of the Criminal Law are the same. According to the provisions of China's patent law, patents include invention patents, utility model patents and design patents, and their technical content requirements, application procedures and examination procedures are different. According to Article 22 of the Patent Law, inventions and utility models that are granted patent rights should be novel, creative and practical, while designs only require novelty. Invention patents need to undergo preliminary examination and substantive examination, and the grant period is long, while utility model patents and design patents do not need substantive examination. After preliminary examination, if no reason for rejection is found, a patent may be granted. In terms of technical content, the invention has a high technical content, so the invention patent can be directly identified as "invention creation" in Article 78 of the Criminal Law, while the technical content of design is relatively small, so all designs cannot be identified as "invention creation" in Article 78 of the Criminal Law. However, we should treat the utility model patents differently, and we can't affirm or deny them all. First of all, from the perspective of technical content, utility models do not necessarily have higher technical content than major technological innovations, so all patented utility models cannot be regarded as "inventions and creations" in Article 78 of the Criminal Law. However, the technical content of some utility model patents is no less than that of invention patents, so it cannot be completely denied that utility model patents do not constitute significant contributions. Because some inventions have high technical content, but in order to obtain patents as soon as possible, the obligee gives up applying for invention patents and only applies for utility model patents. After expert appraisal, a utility model with high technical content can be regarded as an "invention and creation" as stipulated in Article 78 of the Criminal Law, which constitutes a significant contribution. Secondly, judging from the contribution to the country and society, we can't simply deny that criminals have made great contributions to the country and society by obtaining utility model patents. In practice, although some utility model patents have low technical content, they have produced great economic and social benefits after being put into production through the transformation of technological achievements, and can also be considered as making great contributions to the country and society. Therefore, to determine whether the utility model patent can make a significant contribution, we should consider not only its technical content, but also its contribution to the country and society. Those with high technical content or significant contributions to the country and society can be regarded as significant contributions. In addition, because inventions include inventions with patent applications and inventions without patent applications. The invention-creation mentioned in the patent law mainly refers to the invention-creation granted a patent by the state after the parties file a patent application. In fact, after an invention-creation, a party may apply for a patent or not. In real life, there are also cases where some parties do not apply for a patent because they are unwilling to disclose it to the public. They just regard it as a trade secret. We can't deny that the invention-creation without patent application does not belong to the "invention-creation" in Article 78 of the Criminal Law. To this end, the author puts forward two suggestions: First, Article 42 of the Legislative Law stipulates that the specific meaning of legal provisions needs to be further clarified and interpreted by the NPC Standing Committee. Therefore, in order to ensure the unity of law application and eliminate the problem of judicial disunity, it is suggested that the NPC Standing Committee should make a legislative interpretation of "invention and creation" in Article 78 of the Criminal Law and clarify its specific meaning. Two, it is suggested that the law should provide for the identification of inventions and technological innovations. Since invention and technological innovation are technical and professional issues, there are no clear provisions in the law on what is an invention, what is a technological innovation, what is a major technological innovation, who will identify it and how to identify it. Judges are not technical experts, so they can't make an accurate judgment on whether technological innovation, utility model and patent-pending invention-creation behavior conform to the "invention-creation or major technological innovation" stipulated in the Criminal Law. Therefore, the law should stipulate the appraisal institution of inventions and technological innovations, which will appraise the inventions and technological innovations of criminals and issue appraisal conclusions, and then the court will make a ruling on whether the criminal's behavior constitutes a significant meritorious service according to the appraisal conclusions.