On The Expansion And Restriction Of The Crime Of Counterfeiting The Patent

The intellectual property rights present a kind of expansion situation from which generated day. This special inherent characteristic had decided itself is one concept which is in the dynamic developing and changing along with time. From the vertical to consider, the instability of the right mainly shows own expansion as a right; and from the horizontal view, it manifests change of the"weak"and"strong"protection mode that also implies the expansion of the intellectual property rights. As a top priority of the intellectual property rights, this expansion tendency of the patent right is not an exception. How to effectively enforce protection measures, how to balance the interests of property rights and social rights, and encourage invention and creation in the process of executing protection measures, which have an important relationship with the substantial meaning of the patent system. The paper takes the Article 63rd of the 2008 Patent Law of China as a foundation, and takes the Criminal Law should have its own standpoint and choice as the theoretical starting point, through comparison and analysis of the expansion course of the crime of counterfeiting the patent as well as other aspects, and discuss involved theoretical and practical issues, in order to provide some recommendations for correlated judicial interpretations and amendment of the Criminal Law about the crime of counterfeiting the patent. The paper can be divided into three parts as follows:The first part is about the expansion of the crime of counterfeiting the patent of the Chinese mainland and the"decriminalization"in Patent Law of Taiwan. Taking the Article 63rd of the 2008 Patent Law as a foundation, reviewing and analysing the expansion history of the crime of counterfeiting the patent of the mainland. As far as Taiwan is concerned, discuss about the legislative features related to the crime of counterfeiting the patent before 1994 Patent Law, as well as the cause and the course of the"decriminalization"in Patent Law in 2003. Starting from the international treaties related to patent which the mainland had participated, pointing out that compared to international treaties, the expansion of the crime of counterfeiting the patent of the mainland goes beyond the obligations of the international treaties; compared to the relevant provisions of Taiwan, the penalty of the crime of counterfeiting the patent of the mainland is excessive, and have the same penalty about the behavior of counterfeiting the invention, the utility model and the design. The expansion of the crime of counterfeiting the patent of the mainland can be described as"more than severity, lack of differentiation".The second part is the comparison and reference of the legislative related to the crime of counterfeiting the patent on the United States, Britain, Germany and Japan. First, there have a brief introduction about the legislation stipulation related to the crime of counterfeiting the patent of these countries. Next, there have a comparison of the relevant regulations of the chinese mainland with theses countries from the scope of the patent system's objects, the pure substantive counterfeit behavior whether to be criminalized, the degree of seriousnessof statutory sentence related to the crime of counterfeiting the patent, patent logos etc. Then comes to the conclusion: the design way of the criminal legislation on theses countries that have a differential treatment to the patent system's objects and light punishment realted to the crime of counterfeiting the patent, which have a great referring significance to revise and restrict about the expansion of the crime of counterfeiting the patent of the Chinese mainland.The third part is the restriction of the criminal law to the expansion of the crime of counterfeiting the patent. First, begining with the characteristic and distinction of the invention, the utility model and the design, restricting the expansion of the crime of counterfeiting the patent from the perspective of the patent system's objects is an inevitable requirement of the Proportionate Punishment to Crimes, it is a reasonable restriction to the crime of counterfeiting the patent which possible to expand rapidly, it is one of the optimizing method to reduce the negative moral evaluation of the criminal law. Second, through comprehensive analysing the uncertainty of patent right, the difficulty of the identification infringements, cumbersome and lengthiness of the procedure, the exceptional factors and the transactions of the patent infringement, and so on, it's the necessary request of the principle of legality to restrict the criminalization of the illegal implement other people's patent. The last studies concerned issues about the expansion and restriction of the crime of counterfeiting the patent, analysis the article 4th(b) and (c) of the Judicial Interpretation [2004]19, it is necessary to revise"the patentee"to"the patentee or interested person"and distinguish the"pieces"and the"item"in the future. And analysis the related stipulation of the 2010 Rules for the Implementation of the Patent Law from the justification of the"decriminalization"perspective, discuss and refute the viewpoint of enhancing public patent awareness as well as intellectual property awareness through the Criminal Law.The final part points out that the standpoint of the Criminal Law is the persistence of the the principle of legality. On the premise of the provision for the behavior of counterfeiting the patent of the 2008 Patent Law and the 2010 Rules for the Implementation of the Patent Law, the Criminal Law not only should not transcendence the premise, but also should select the behavior of the most suitable to regulate as crime, which is the choice and restriction of the Criminal Law when it is facing the expansion of the crime of counterfeiting the patent, and the paper put forward the corresponding legislative suggestions.