Patent right is the exclusive right of the patentee to use his invention and creation, and patent infringement refers to the illegal act of implementing a valid patent protected by law for the purpose of production and operation without the permission of the patentee. Criminal responsibility of patent infringement-In nature, patent infringement is completely different from counterfeiting others' patents, and pure patent infringement cannot constitute the crime of counterfeiting patents. However, it is undeniable that some serious patent infringements may be as harmful to society as counterfeiting others' patents, such as repeated infringements, which not only seriously infringe the patentee's patent rights, but also infringe the national patent management system, disrupt the normal economic order and harm the interests of the country and the public. Therefore, some people think that these serious patent infringements should also be investigated for criminal responsibility, and the crime of counterfeiting patents is naturally applicable. Before the implementation of the new criminal law, according to the analogy system, it is reasonable to apply the analogy crime of counterfeiting patents to patent infringement that is seriously harmful to society, and it does not violate the guiding ideology of the criminal law. However, after the implementation of the new criminal law, the analogy system was abolished and the principle of a legally prescribed punishment for a crime was established. There is no explicit stipulation that there is no crime. For patent infringement with serious social harm, criminal responsibility should be investigated theoretically, not judicially. This is a contradiction and an omission in legislation (some scholars think this is not an omission). Investigating his criminal responsibility can only be solved by legislation, and can't be compared at the expense of the principle of legally prescribed punishment for a specified crime. It is suggested that the crime of patent infringement should be added to the criminal law.
Legal objectivity:
Article 68 of the Patent Law of People's Republic of China (PRC) * * * Whoever counterfeits a patent shall bear civil liability according to law, and the department in charge of patent law enforcement shall order it to make corrections and make a public announcement, confiscate its illegal income, and may concurrently impose a fine of less than five times its illegal income; If there is no illegal income or the illegal income is less than 50 thousand yuan, a fine of less than 250 thousand yuan may be imposed; If a crime is constituted, criminal responsibility shall be investigated according to law. Article 216th of the Criminal Law of People's Republic of China (PRC), if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or only be fined.