According to the relevant laws and regulations, if the actor carries out acts such as counterfeiting patents, he shall not only bear civil liability according to law, but also be punished by the patent law enforcement department. If a crime is constituted, criminal responsibility shall be investigated according to law. First, is counterfeiting a patent infringement? Counterfeiting patents will involve patent infringement. Identification of patent infringement: (1) The infringed intellectual property rights must be valid, that is, the infringed intellectual property rights must be applied in China and verified and approved by China National Intellectual Property Administration. The validity period of intellectual property rights shall not expire, nor shall it be an application that has not been approved, or an application declared invalid by the reexamination board of the Intellectual Property Office. If it does not have the above effect, the lawsuit of intellectual property infringement cannot be carried out. (2) There must be a clear definition of infringement, that is, the plaintiff must make a detailed explanation of the infringer's behavior and provide sufficient evidence to prove the occurrence of infringement. In fact, China's relevant laws on intellectual property rights have stipulated this requirement in detail, and pointed out the types of infringement and events that cannot be counted as infringement. (3) Infringement must be for profit, and non-profit infringement depends on the situation. According to the regulations, if the intellectual property is used for profit, the user must obtain the permission of the owner, otherwise it will constitute an infringement of intellectual property rights. Therefore, for-profit is also one of the main elements of intellectual property infringement. (4) The occurrence of tort must be caused by the subjective fault of the infringer. It is believed that no matter whether the subjective fault of the infringer is intentional or caused by his own fault, he should be responsible for the loss of intellectual property rights. If the infringer can prove the legality of this act, he may not be liable for compensation, but he still needs to bear the civil liability for stopping the infringement and destroying the infringing products. Article 60 of the Patent Law of People's Republic of China (PRC), if a patent is exploited without the permission of the patentee, that is, the patent right is infringed. In case of any dispute, the parties concerned shall settle it through consultation; Unwilling to negotiate or failing to do so, the patentee or interested party may bring a suit in a people's court or request the administrative department for patent affairs to handle it. When the administrative department for patent affairs finds that the infringement is established, it may order the infringer to stop the infringement immediately. If a party refuses to accept the decision, he may bring a lawsuit to the people's court in accordance with the Administrative Procedure Law of the People's Republic of China within 15 days from the date of receiving the notice of handling. If the infringer fails to prosecute and stop the infringement upon expiration of the time limit, the administrative department for patent affairs may apply to the people's court for compulsory execution. At the request of the parties concerned, the administrative department for patent affairs may mediate the amount of compensation for patent infringement; If mediation fails, the parties may bring a lawsuit to the people's court in accordance with the Civil Procedure Law of People's Republic of China (PRC). Article 65 The amount of compensation for patent infringement shall be determined according to the actual losses suffered by the obligee due to the infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement. If it is difficult to determine the loss of the obligee or the interests of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement. If it is difficult to determine the loss of the obligee, the benefits obtained by the infringer and the patent license fee, the people's court may determine the compensation of more than 1 10,000 yuan and less than1100,000 yuan according to the type of patent right, the nature and circumstances of the infringement. 2. What is the act of counterfeiting other people's patents? (a) without permission, mark the patent number of others on the products or product packages manufactured or sold by it; (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. Three. According to Article 63 of the Patent Law of People's Republic of China (PRC), in addition to bearing civil liability according to law, the administrative department for patent affairs shall order it to make corrections and make a public announcement, confiscate its illegal income, and may impose a fine of less than four times its illegal income; If there is no illegal income, a fine of less than 200,000 yuan may be imposed; If a crime is constituted, criminal responsibility shall be investigated according to law.
Legal objectivity:
Counterfeiting another person's patent refers to the act of using the patent mark without the permission of the patentee. Article 2 16 of the Criminal Law stipulates that "whoever imitates another person's patent, 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". This is the only provision of criminal law on patent crime, and the meaning of "counterfeiting others' patents" is not clearly defined. Before the revision, the Patent Law and its implementing rules did not clearly define the constitution of counterfeiting others' patents. Paragraph 1 of Article 63 of the original Patent Law stipulates that "counterfeiting the patent of others shall be handled in accordance with the provisions of Article 60 of this Law; If the circumstances are serious, the person directly responsible shall be investigated for criminal responsibility in accordance with the provisions of Article 127 of the Criminal Law. There are some ambiguities and even mistakes in the understanding of "counterfeiting others' patents" in theory and judicial practice. 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. The relationship between patent counterfeiting and patent infringement is as follows: As Article 2 16 of the Criminal Law stipulates the crime of patent counterfeiting in the form of blank charges, the specific definition of patent counterfeiting can only be determined with reference to relevant laws and regulations, that is, the Patent Law and its implementing rules. Article 63 of the original patent law stipulates that "counterfeiting the patent of others shall be handled in accordance with the provisions of Article 60 of this Law". So it is inevitable to confuse the relationship between counterfeiting other people's patents and patent infringement. The confusion of the relationship between them can be summarized into two aspects. First, it is believed that the act of counterfeiting others' patents must be based on the premise of implementing others' patents without permission, that is, "counterfeiting is infringement"; Second, it is believed that the act of implementing others' patents without permission will inevitably constitute the act of counterfeiting others' patents, that is, "infringement is counterfeiting." After the revision of "counterfeiting does not necessarily infringe" patent law and its detailed rules for implementation, in the theoretical circle of intellectual property law, it is generally believed that counterfeiting other people's patents is obviously different from patent infringement. According to Article 57 of the Patent Law, patent infringement is defined as "exploiting a patent without the permission of the patentee". According to Article 1 1 of the Patent Law, "implementing its patent" means "manufacturing, using, promising to sell, selling or importing its patented products for production and business purposes, or using its patented method and using, promising to sell, selling or importing products directly obtained according to the patented method", or "manufacturing, selling or importing its patented design products. Article 58 of the Patent Law has deleted the expression "it shall be handled in accordance with the provisions of Article 60 of this Law (the new Patent Law is changed to Article 57)", and Article 84 of the Detailed Rules for the Implementation of the Patent Law clearly stipulates this. See above for details. Therefore, patent infringement directly violates the exclusive right of the patentee to exploit the patent stipulated in Article 1 1 of the Patent Law, that is, the object of infringement is the patent right; The act of counterfeiting others' patents directly infringes the patentee's right to mark as stipulated in Article 15 of the Patent Law, that is, the object of infringement is the right to mark. At the same time, the act of counterfeiting others' patents infringes on the patentee's goodwill, deceives the public, harms the public interest, infringes on the national patent management system, disrupts the normal market order, and is of great social harm. Therefore, as long as an act conforms to the constitutive requirements of the above-mentioned act of counterfeiting others' patents and belongs to one or a combination of the four acts stipulated in Article 84 of the Detailed Rules for the Implementation of the Patent Law, it belongs to the act of counterfeiting others' patents, and it is not necessarily related to whether the act infringes others' patents at the same time. For example, the products manufactured or sold by the actor did not use others' patents without permission, or even used their own patented technology, but used others' patent numbers without permission on their products or product packaging. This kind of behavior obviously does not constitute patent infringement, but it does constitute counterfeiting others' patents. If the circumstances are serious, it constitutes a crime of counterfeiting patents. Of course, in practice, there will often be competition between counterfeiting others' patents and patent infringement. For example, the actor not only exploited the patent of others without permission, but also used the patent number of the patentee on his product or product packaging without permission. This kind of behavior certainly constitutes counterfeiting other people's patents and obviously constitutes patent infringement. But it is not because of the premise of patent infringement that it constitutes counterfeiting others' patents, but it meets the constitutive requirements of counterfeiting others' patents. Therefore, the act of counterfeiting other people's patents is not based on patent infringement, that is, "counterfeiting does not necessarily infringe." The products that counterfeit others' patents can be different from others' patented products, and the methods of counterfeiting others' patents can also be different from others' patented methods. Infringement is not necessarily counterfeiting. Conversely, does patent infringement necessarily constitute counterfeiting other people's patents? The answer is no, too. For a long time, there has been a view in the theoretical and judicial circles that patent infringement is also or is an act of counterfeiting others' patents. This may be because Article 63 of the original Patent Law stipulates that if the act of counterfeiting another person's patent is serious, criminal responsibility shall be investigated according to the provisions of the original Criminal Law on the crime of infringing trademark rights. Indeed, for the exclusive right to use a registered trademark, "infringement is counterfeiting" is generally correct, because the object of protection of the exclusive right to use a registered trademark is the sign that the goods or services of the right holder are different from others. Infringement of the exclusive right to use another person's registered trademark is bound to be an act of using another person's registered trademark without permission, thus confusing the public. However, the object of patent protection is a new invention, not a patent trademark or patent number. This significant difference in the objects of protection between the two determines that "infringement is counterfeiting" established in registered trademarks is difficult to establish in patents. As mentioned above, patent infringement directly infringes the patentee's exclusive right to use his patent, while counterfeiting others' patents directly infringes the patentee's marking right and goodwill. Therefore, patent infringement does not necessarily constitute counterfeiting others' patents. For example, in the case mentioned in this article, the defendant exploited his patent without the permission of the patentee, which belongs to patent infringement; However, if the defendant does not use the patentee's patent number on his product or product packaging, or uses the patentee's patent number in contracts, advertisements or other promotional materials, or forges or alters the patentee's patent certificate, patent documents or patent application documents, his behavior should not constitute an act of counterfeiting the patent of others. No matter how serious the circumstances are, the infringer should not be investigated for criminal responsibility according to the principle of legally prescribed punishment for a specified crime, but only be required to bear tort liability through civil remedies. Therefore, patent infringement does not necessarily constitute counterfeiting other people's patents, that is, "infringement is not necessarily counterfeiting." Even if the two compete, they are not "counterfeit" because of "infringement", but "counterfeit" because of "counterfeiting". In nature, the criminal responsibility of patent infringement is completely different from that of 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.