The difference between counterfeit patent and counterfeit patent is as follows: 1. The scope of these provisions is different. (1) Act of counterfeiting other people's patents: Article 84 of the Detailed Rules for the Implementation of the Patent Law of People's Republic of China (PRC) stipulates that the following acts are acts of counterfeiting other people's patents: 1. Without permission, mark the patent number of others on the products or product packages manufactured or sold by them; 2. Using other people's patent numbers in advertisements or other promotional materials without permission, causing people to mistake the technology involved for other people's patented technology; 3, without permission, using the patent number of others in the contract, making people mistake the technology involved in the contract for the patented technology of others; 4. Forging or altering other people's patent certificates, patent documents or patent application documents. (II) Act of passing off a patent According to Article 59 of the Patent Law, act of passing off a patent refers to the act of passing off a patented product with a non-patented product and passing off a patented method with a non-patented method. The new Article 85 of the Detailed Rules for the Implementation of the Patent Law specifies in detail five acts of counterfeiting patents, namely: 1, manufacturing or selling non-patented products marked with patent marks; 2. After the patent right is declared invalid, continue to mark the patent mark on the products manufactured or sold; 3. Non-patented technology is called patented technology in advertisements or other promotional materials; 4. Non-patented technology is called patented technology in the contract; 5. Forging or altering patent certificates, patent documents or patent application documents. Second, the objects of infringement are different. The act of impersonating a patent is a kind of "making something out of nothing", while the act of impersonating another person's patent is a kind of "confusing the real with the fake".
Legal objectivity:
According to Article 59 of the Patent Law, the act of counterfeiting a patent refers to the act of "passing off a non-patented product as a patented product and passing off a non-patented method as a patented method". The new Article 85 of the Detailed Rules for the Implementation of the Patent Law specifies in detail five acts of counterfeiting patents, namely: (1) manufacturing or selling non-patented products marked with patent marks; (two) after the patent right is declared invalid, the patent mark continues to be marked on the products manufactured or sold by it; (3) Calling non-patented technology as patented technology in advertisements or other promotional materials; (4) The non-patented technology is called patented technology in the contract; (5) Forging or altering patent certificates, patent documents or patent application documents ". Just like the act of counterfeiting others' patents, the act of counterfeiting patents can only be one or a combination of the above five acts. The essential difference between counterfeiting others' patents and counterfeiting others' patents: Compared with the four acts of counterfeiting others' patents, the four acts of counterfeiting listed in this article are the same as counterfeiting others' patents, but the provisions of this article lack the qualifications of "unauthorized" and "others". In the case that the patent right is declared invalid, according to the provisions of Article 47 of the Patent Law, "the patent right declared invalid shall be regarded as nonexistent from the beginning". Therefore, the essential difference between the two is that the act of impersonating a patent is a patent that does not actually exist, and it is "out of nothing"; The act of counterfeiting other people's patents is a real patent obtained by others, and it is "confusing the fake with the real". If the patent involved in the actor's behavior does not actually exist, it can only be identified as an act of impersonating a patent; If the patent involved is a patent that others have already obtained, it can be identified as an act of counterfeiting others' patents. If the circumstances are serious, it constitutes a crime of counterfeiting patents. Generally speaking, there will be no competition between counterfeiting others' patents and counterfeiting others' patents, but there may be mutual transformation. For example, after the patent involved in the act of counterfeiting others' patents is declared invalid, the act is transformed into the act of counterfeiting patents; The invention patent number used in the act of counterfeiting patent is exactly the same as the patent number obtained by others in the future, which is transformed into the act of counterfeiting other people's patents. The criminal responsibility of impersonating a patent is undeniable. The social harm of impersonating a patent may be no less than impersonating someone else's patent. Both of them are also false behaviors, deceiving the public, infringing on the national patent management system, damaging the interests of the state and the public and disrupting the normal economic order. The difference is that the act of counterfeiting others' patents directly infringes on the marking right and goodwill of a specific patentee, while the act of counterfeiting patents does not directly infringe on the marking right and goodwill of a specific patentee, but indirectly has a negative impact on the goodwill of an unspecified majority of patentees. Therefore, if the circumstances are serious, impersonating a patent should be investigated for criminal responsibility more than patent infringement. Some people think that "counterfeiting patent" in the crime of counterfeiting patent itself includes "counterfeiting other people's patent" and "impersonating patent", and there is nothing wrong with applying "counterfeiting patent crime" to serious acts of counterfeiting patent. Unfortunately, Article 2 16 of the Criminal Law clearly stipulates that "counterfeiting patents" means "counterfeiting patents of others". According to the principle of a legally prescribed punishment for a specified crime, counterfeit patents cannot be investigated for criminal responsibility. Like patent infringement which is seriously harmful to society, there is a contradiction of "criminal responsibility should be investigated but not investigated", and the only solution can only be through legislative channels. It is suggested that the "counterfeit patent" stipulated in Article 2 16 of the Criminal Law be changed to "counterfeit patent", so that the crime of counterfeiting patent can be applied to both "counterfeit patent" and "impersonating patent".