Counterfeiting others' patents means (1) marking others' patent numbers on products manufactured or sold by them without permission;
(two) without permission, using the patent number of others in advertisements or other promotional materials, making people mistake the technology involved for the patented technology of others; (3) Using someone else's patent number in a contract without permission, causing people to 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.
So counterfeiting other people's patents is actually a kind of fraud. Criminals do not have relevant patents, but lie that they own the patents, deceiving consumers or contract counterparts. Therefore, counterfeiting other people's patents undermines the market economic order and affects the interests of the public, and is included in the crime of undermining the socialist market economic order in the criminal law.
Infringement of patent rights is a completely different act. For invention patents and utility models, patent infringement refers to manufacturing, using, promising to sell, selling or importing patented products for the purpose of production without permission; For patented methods, it means using, promising to sell, selling or importing products directly obtained by patented methods without permission; For a design patent, it means to manufacture, promise to sell, sell or import its patented product without permission.
Then, why is there no crime of patent infringement in criminal law?
Generally speaking, there are two reasons.
First of all, this is determined by the nature of the patent itself. In reality, intellectual property administrative authorities may grant a large number of invalid patents. To obtain a patent, a technology usually needs to meet three requirements: novelty, creativity and practicality. From the perspective of novelty elements alone, it is difficult for Patent examiners to ensure that every patent granted by it meets the novelty standards. At present, the novelty requirement is absolute novelty standard, that is, it cannot be used publicly in public publications anywhere in the world or by anyone anywhere before the filing date. Due to the limitation of time and resources, it is difficult for examiners to strictly check, so a large number of patents may actually be invalid. In fact, the creativity and practicality of some patented technologies are likely to be questioned. Not to mention utility model and design, two kinds of patents that don't need substantive examination.
If the criminal law stipulates the crime of patent infringement, there may be such a situation. When the procuratorate pursues the criminal suspect, the suspect puts forward a request for patent invalidation. According to the current regulations, the court can only wait for the result of invalid patent before continuing to hear criminal cases. The patent invalidation procedure should be decided by the Patent Reexamination Board first. If the parties are not satisfied with the judgment, they can also bring an administrative lawsuit to the court, and if they are not satisfied with the results of the first instance, they can continue to appeal. This process is usually long. At this time, the procuratorate can only detain criminal suspects. If the patent is finally proved to be invalid, then the criminal suspect can only be released, which may lead to problems such as wrong prosecution and extended detention.
Therefore, patent infringement is not considered as a crime in criminal law, but a right with complex rights. On the contrary, the identification of counterfeiting registered trademarks and copyright infringement is much clearer. However, it should also be noted that not all trademark infringement and copyright infringement constitute crimes. The provisions in the criminal law are very clear about the status of rights. For example, counterfeiting trademarks requires the same kind of goods and the same trademark; Other torts, such as similar goods and similar trademarks, are not stipulated in the criminal law because of the complex state of rights. For the infringement of copyright, only the infringement of copy right and distribution right is stipulated, but there is no deduction right that needs to be demonstrated for the state of rights.
The second reason is that the content adjusted by criminal law usually must have a greater impact on the public interest. For example, counterfeiting trademarks, copyright infringement and so on. , may bring the consequences of deceiving consumers and affecting the order of the market economy. For example, criminal suspects selling fake mobile phones to consumers, but labeling them as Apple brands, is actually a popular saying of selling fake goods. Or criminal suspects sell pirated CDs of poor quality, and the interests of consumers may also be damaged. But infringement of patent rights is different. For example, suppose that some technologies in Samsung's mobile phone infringe the patent right of Apple's mobile phone, but it does not have much impact on consumers. Therefore, the infringement of patent rights is actually just a dispute of interests between the parties, which has little impact on the interests of the public. Therefore, the criminal law does not take this into account.