1. About simulation (Article 2)
This time, the provisions of Article 2 of the Interim Provisions have been greatly revised, and the revised provisions of Article 2 will be explained one by one.
(1) manufacturing or selling non-patented products marked with patent marks.
The behavior listed in this paragraph refers to the behavior that the product manufactured or sold by the party concerned has not obtained a patent, but the product is marked with a patent mark.
(2) after the patent right is revoked or declared invalid, manufacturing or selling products marked with patent marks.
According to Articles 44 and 50 of the Patent Law, the revoked and invalid patent right is regarded as nonexistent from the beginning, and the right of the parties to mark the patent mark on their products is also lost. Knowing that the patent right does not exist, the parties still mark the patent mark on the products specially manufactured or sold to deceive the public, which is an act of counterfeiting patents.
(3) continuing to manufacture or sell products marked with patent after the expiration or termination of the patent right.
After the expiration or termination of the patent right, the technology becomes public technology and anyone can use it for free. If the original patentee continues to manufacture or sell products marked with patent marks, it will cause the public to misunderstand that the patent right is still valid and infringe on the legitimate rights and interests of the counterpart and the public.
(4) printing or providing patent marks for the actors mentioned in items 1 to 3 of this article.
This paragraph refers to the act of providing convenience for the actor who pretends to be a patent. It is also an act of counterfeiting patents if the parties print relevant marks and provide them to the actors mentioned in items 1 to 3 of this article for them to attach to their products.
(5) Forging or altering patent certificates or other patent documents or patent application documents.
Forgery refers to the actor making forged documents himself in order to achieve a certain purpose, in an attempt to impersonate documents that should be made by specialized agencies; Change means that participants use real documents to change local content. The two acts are different, but they are both for the purpose of cheating and belong to the same illegal act.
Patent certificates, patent documents or patent application documents are legal documents related to patents or patent applications, which record the relevant rights and legal status, and shall be protected and shall not be forged or tampered with.
(six) the non-patented technology is called patented technology, and a licensing contract is concluded with others.
Counterfeiting patents in contracts is also harmful. When concluding a license contract with others, calling non-patented technology patented technology is fraudulent and should be punished.
(7) Calling non-patented technology as patented technology in advertisements.
Advertising has great social popularity, and the false behavior in the field of advertising media will make more people deceived and do great harm to the normal social and economic order. Therefore, it will be more conducive to the patent administration authorities to crack down on illegal acts, punish offenders, protect the legitimate rights and interests of the public, and maintain a normal and orderly social and economic order.
(8) Other acts of passing off non-patented products as patented products or passing off non-patented methods as patented methods.
This paragraph is a supplement to other unlisted acts of impersonation of patents, which is convenient for the patent administration authorities to enforce the law.
2. The act of selling products manufactured within the validity period after the expiration or termination of the patent (Article 3)
According to the provisions of the patent law, within the validity period of the patent right, the patentee himself or his licensee has the right to indicate the patent mark and patent number on the patented products he manufactures or sells. After the expiration of the patent right, the patentee or licensee sells products marked with patent marks that are legally manufactured within the validity period, which does not belong to the act of passing off non-patented products as patented products or passing off non-patented methods as patented methods as stipulated in the patent law.
To this end, a third article has been added, stipulating that after the expiration or termination of the patent right, it is not an act of passing off a patent to continue selling products marked with a patent before or after the expiration of the patent right. Combining the provisions of Article 3 with the provisions of Item 3 of Article 2, on the one hand, it is stipulated that after the expiration and termination of the patent right, products marked with patent marks shall not be manufactured or sold; On the other hand, it provides convenience for the original patentee to dispose of the products marked with patents within the patent validity period, and realizes the balance of interests between the public and the patentee. Two, supplement and improve the punishment procedures for counterfeit patents.
The procedure of administrative punishment is an important measure to ensure the legal, fair and efficient operation of administrative punishment. The provisions of the "Interim Provisions" on the investigation procedure have played a guarantee role for the patent administration organs to enforce the law fairly. The revision of the investigation procedure this time is based on the relevant provisions of the Administrative Punishment Law of the People's Republic of China, and has correspondingly supplemented and improved the existing procedures concerning the indication of administrative punishment rights, the procedures for ascertaining illegal facts, and the procedures for adjudication of punishment.
1. Law Enforcement Certificate of Patent Administration Authority (Articles 7 and 10)
In the process of investigating and dealing with patent counterfeiting, law enforcement officers should show their law enforcement certificates, which is an important content of administration according to law. On the one hand, it can show the identity of law enforcement personnel and show the relative person that the organ has the right to punish, thus strengthening the authority of law enforcement personnel; On the other hand, it can remind the respondents of their obligation to assist in the investigation. If they commit perjury or obstruct the investigation, they will bear legal responsibility, which is also conducive to the supervision of law enforcement personnel.
When the "Interim Provisions" were formulated, the patent administration authorities did not have special law enforcement certificates. In order to standardize law enforcement, ensure the quality of punishment, and establish a law enforcement team with good legal knowledge, good quality and strong professional skills, our bureau has established a training and certification system for law enforcement personnel of patent management organs since 1995, and made a unified law enforcement certificate for patent management organs, stipulating that the staff of patent management organs can only engage in the investigation and punishment of counterfeit patents after being trained by China National Intellectual Property Administration and issued with the law enforcement certificate of patent management organs. This practice tightens the law enforcement procedures and improves the quality of law enforcement. The practical results show that the effect is good, so it is added when the Interim Provisions are revised.
2. Evidence (Article 12)
An important task in investigating and dealing with patent counterfeiting cases is to investigate and collect evidence. Obtaining evidence is the key to finalizing the case. Lack of necessary means of obtaining evidence, especially necessary evidence preservation measures, is a problem that has long plagued the law enforcement work of patent management organs. In view of this situation, according to the relevant provisions of the Administrative Punishment Law, the patent administrative organ may take the method of sampling for evidence collection. If the evidence may be lost or difficult to obtain later, it may be registered and preserved in advance, and the parties or relevant personnel shall not destroy or transfer the evidence within seven days. This provision will help the patent administration authorities to investigate and deal with patent counterfeiting in a timely, effective and accurate manner.
Sampling forensics is a method to prove a whole by taking typical samples. You can't take away a large number of items. Only when the evidence may be hidden, transferred, destroyed or easily lost can you register and save it in advance. Registration and preservation must be approved by the person in charge of the patent administration organ to prevent abuse, and the preservation period is 7 days. The patent administration organ shall promptly investigate and collect evidence, and the overdue registration and preservation shall be invalid. If the illegal acts of the parties are not found, the registration shall be cancelled and kept. This provision is also conducive to improving the efficiency of handling cases by patent administrative organs.
3. Notification, defense and hearing before punishment decision (Articles 17, 18 and 19)
Before making a decision to investigate and deal with patent counterfeiting, the patent administration organ has the obligation to inform the parties concerned of the relevant facts, evidence and the rights enjoyed by the parties according to law, which is the requirement of balancing administrative power and civil rights. When investigating and dealing with patent counterfeiting, the patent administration authorities must ensure that the facts are clear, the evidence is conclusive and the applicable law is correct. The parties have the right to know the reasons and basis of punishment and the rights they enjoy according to law, including the right to state and defend themselves, the right to request a hearing, the right to file an administrative reconsideration and administrative lawsuit, and the right to request administrative compensation.
When the parties exercise their rights of statement and defense, the patent administration authorities shall examine the facts and evidence presented by the parties, and adopt them if they are established, which is of great significance for the patent administration authorities to ascertain the facts and correctly apply laws and regulations. In practice, some parties are worried that the punishment will be aggravated after pleading, and they cannot fully exercise their right to defense. Therefore, it is based on the principle of "no additional punishment on appeal" in China's criminal procedure law that the punishment will not be aggravated because of the parties' excuses, which can make the parties dispel their worries, fully exercise their rights and reduce the occurrence of misjudged cases.
The patent administration organ shall inform the parties concerned of the right to request a hearing before making an administrative penalty of a relatively large fine.
But not all administrative actions need hearing, otherwise it will consume a lot of manpower, material resources and time, which is not conducive to the rapid and convenient characteristics of administrative law enforcement. Only when complex administrative acts such as large fines are involved, the parties have the right to request a hearing. If the party concerned fails to make a written request for hearing within three days after the notification of the patent administration authority, it shall be deemed as giving up his rights.
If the patent administration organ fails to fulfill the above obligations, the procedure will be illegal and the administrative penalty can be revoked.
4. On the principle of separation of penalty and payment (Article 27)
In order to prevent the abuse of administrative punishment, the Administrative Punishment Law stipulates that the administrative organ that makes the punishment decision should be separated from the institution that collects the fine, and the parties concerned should pay the fine at the designated bank. This system fundamentally cuts off the interest relationship between administrative punishment and administrative organs, which is conducive to building a clean government, strict administrative management and establishing a good image of administrative punishment.
If the fine is not paid at the due date, a fine shall be imposed or the property shall be sold or auctioned to offset the fine.
5. Regarding legal documents (Article 35)
In order to standardize the working procedures of patent management authorities to investigate and deal with counterfeit patents and avoid illegal procedures, our bureau has formulated relevant legal documents.