Research On Several Issues Of The Crime Of Infringing The Patent Right

With the arrival of the era of knowledge-driven economy, thephenomenon of infringe the patent right became more and more serious dayby day. Although our country has already set up a more complete legalprotection system of patent right, but it isn't enough to prevent and reduce theemergence of the behavior of infringing the patent right effectively. So, howto strengthen the legal protection especially criminal law to protect the patentright, become the subject that all circles of society care about. Proceedingfrom relevant regulations, such as the patent law, this essay has analyzedvarious kinds of the behaviors of infringing patent rights, and with combiningthe foreign relevant legislation, made a tentative definition to the behavior ofimplementing other's patent illegally, the behavior of imitating other's patent,and the behavior of pretending to be the patent.The full text can be divided into five parts altogether, their abstracts areas follows:Part one, this chapter has mainly introduced the concept and content ofpatent, the patent right, and the patent system. Two essential characteristicsof the patent system --Monopolizing and disclosing decide that the system ofpatent has extremely important value. It can promote the progress anddevelopment of science and technology, and is the model of givingconsideration to individual interests and social interests. There are mainlytwo kinds of behaviors of infringing patent right: the behavior ofimplementing other's patent illegally and the behavior of imitating other'spatent. Generally the behavior of implementing other's patent illegally iscalled as the patent tort in the theory circle of the patent law. The behavior ofimplementing the behavior of other's patent illegally means withoutpermission of the patentee, and with the purpose of production andmanagement, the behaviors of making, using, sail promising, selling,importing the patented products, or using the patented method and using, sailpromising, selling, importing the products obtained directly according to thispatented method. The behavior of imitating other's patent, refers to thebehavior of violating the patent statute, imitating other's patent. There is akind of behavior which is similar to the behavior of imitating other's patentbehavior but not belonged to the same nature, that is the behavior ofpretending to be the patent, which means a non-patented product pretend tobe a patented product, or a non-patented method pretend to be a patentedmethod.Part two, this chapter introduced the two different attitudes to thebehavior of infringing the patent right and different legislative styles in theAnglo-American law system represented by Great Britain and America andthe continental law system represented by Germany, French and Japan. Forthe behavior of infringing patent right, in the Anglo-American law system,Britain criminal law only stipulated the crime of imitating the patent, andAmerican criminal law has only stipulated the false patent mark crime;whilein the continental law system, the criminal law in Germany, French and Japanall criminalized the behavior of implementing other's patent namely thebehavior of the patent tort.Part three, this chapter has introduced the current criminal legislation ofthe behavior of infringing the patent right in our country at first. Our countryonly stipulated the crime of imitating other's patent, while didn't stipulatedthe crime of implementing other's patent illegally at present.Also this chapter made a comparison with the criminal legislation of thebehavior of infringing the patent right of our country and other countries: Tothe behavior that imitates other's patent, most countries stipulated it for thecrime. Different from legal provisions of our country, a lot of countries havemade clear and concrete regulation in the behavior of imitating other's paten.Some countries stipulated the crimes of pretending to be the patent andimitating other's patent together, such as the false patent mark crime inAmerican criminal law;And to the behavior of implementing other's patentillegally, various countries stipulated differently on what kind of legalliability should be born. There are two measures on the whole: First, stipulatethat the behavior of implementing other's patent illegally is the civil tort, andonly bear the civil liability for tort, such as the Anglo-American law systemrepresented by Great Britain and America. Second, to the behavior ofimplementing other's patent illegally, besides setting up the civil system,criminal law and penalty punishment are also utilized, such as the continentallaw system represented by Germany, French and Japan.Part four, this chapter analyzed the crime of imitating the patent first,in order to understand it correctly. The object of the imitating patent crimecan only be the patent management system of the country and the patentee'spatent right. The objective respect of the crime must possess four keyelements at the same time: (1) Violating the regulation of patent management.(2) Having implemented the behavior of imitating other's patent. (3) Thebehavior of imitating must take place within protection period of patent right.(4) The behavior of imitating must reach the degree of a serious nature. Thesubject of crime is the general natural person who has complete criminalresponsibility ability;the legal person can be the subject of this criminalcrime too. The subjective respect of the crime is voluntary.As to "the behavior of imitating other's patent", different peopleunderstand its meaning differently. The focus of the question is: Should makean expanding explanation, and interpret the behavior of implementing other'spatent illegally and pretending to be the patent as this kind of guilty behavior?Through analyzing the legislations of the patent crime, the thesis proved that"the behavior of imitating other's patent" can only be understand in a narrowsense. The author also made a simple analysis of the other issues in definingthe patent crime, such as the question of the behavior of imitating the patentwhich is invalid or ceased。This chapter reviewed to the legislation of the crime of imitating thepatent. Our country should combine dispersing type with the code type,utilize two kinds of legislative modes to perfect our country's legislation onthe crime of infringing the patent right.Part five, whether the behavior of putting others patent into practiceillegally should be criminalized, should be considered carefully combinedwith our country's conditions. Our country should not stipulate for the crimeat present. There are three reasons: First, from the point of view of society'sharmfulness, its social harmfulness is smaller than the behavior of imitatingother's patent;Second, a lot of countries in the world do not stipulate thecriminal responsibility of the behavior of implementing other's patentillegally. Even the countries of stipulating the crime, regarded it as the threatto infringers in practice;Third, stipulating the tort behavior of implementingother's patent right illegally will violate the criminal principal of modesty.Looking from the nature of the behavior of implementing other's patent rightillegally, it belongs to the behavior of infringing private right. Different fromthe behaviors of infringing, such as infringing trademark privileges, etc., thebehavior of infringing the private right, can be adjusted through the civilmethod. Or we may say that the legal liability of this kind of behavior cansubstitute criminal responsibility with civil responsibility. And, in practices,stipulating this kind of behavior as the crime really have the suspect ofstudying the developing martial law and will produce very great negativefunction for promoting the development in technology. So utilizing thecriminal method to control the behavior may hinder from the favorablescientific researches that will be benefit to the society. So it isn't necessary tocriminalize the behavior of implementing other's patent illegally.For the behavior of pretending to be the patent, the conductor marks thefalse patent sign and patent number at the one's own non-patented product,which is quite similar to other's patent. Strictly speaking, this is a kind ofbehavior of pretending to be the patent. But it causes the source of theproducts to be basically obscure between this kind of behavior and thebehavior of imitating other's patent, and the social harmfulness between thebehavior of pretending to be the patent and the behavior of imitating other'spatent behavior are approximate. In order to protect the patentee's interestseffectively, we should stipulate the behavior of pretending to be the crime .The best way to realize the criminal adjusting to the behavior of pretending tobe patent is to amend the behavior of "imitating other's patent" stipulated inthe article 216 of criminal law into the behavior of "imitating the patent". Inthis case, the purpose of criminalizing the behavior of pretending the patentcan be fulfilled with continuing using this existing charge of the imitatingpatent crime. The behavior of imitating other's patent behavior and thebehavior of pretending to be the patent behavior are two kinds of guiltybehaviors in the imitating patent crime, and should be adjusted under thestructure of criminal law. It will protect the patent system of our country in anall-round way, and help our country's criminal legislation of the imitatingpatent crime to be in line with international standards.