The difference between patent infringement and patent counterfeiting crime
What we usually call patent infringement means that, according to Article 11 of the Patent Law, after the patent right for invention and utility model is granted, no unit or individual may exploit its patent without the permission of the patentee, that is, it may not manufacture, use, promise to sell, sell or import its patented product for production and business purposes, or use its patented method and use, promise to sell, sell or import the product directly obtained according to the patented method. After the design patent is granted, no unit or individual may exploit its patent without the permission of the patentee, that is, it may not manufacture, promise to sell, sell or import its patented product for production and business purposes.
Therefore, patent infringement should first be the actual implementation of the patent technical scheme or patent design scheme, regardless of whether the patent number of the patent involved is marked or not. The act of counterfeiting a patent is a false propaganda act that does not actually implement a patent scheme, but clearly shows the public that its products adopt and implement a patent scheme, that is, the act of selling dog meat to fool people.
Thus, what we usually call patent infringement should not constitute the crime of counterfeiting patents, nor will it lead to imprisonment.
This is the problem. What should I do if someone not only implements other people's patent schemes without permission, but also truthfully shows the patent information involved to the public?
This situation constitutes patent infringement and should bear civil liability. There should be no objection. Is it possible to constitute a crime of counterfeiting patents? According to the above-mentioned legal provisions, it should not constitute, because people do not "fake" behavior, but do what they say, do not fool people, do not engage in false propaganda, and should not go to jail.
In other words, people who counterfeit patents may go to jail (imprisonment of not more than three years or criminal detention, with or without a fine), while those who infringe patents only bear civil liability (stop the infringement and compensate for the losses)! In other words, I don't have to go to jail for using your patent. I used your patent and publicly declared that I don't need to go to jail. However, I didn't use your patent. I just said that if you use it, you will probably go to jail (note that the judicial interpretation is "serious" and anyone can do it in practice). It seems unreasonable, but this is the current legal provision.