Design Of Criminal Protection System On Patent Field

Intellectual property economy is a new trend of the economy development at present, especially patent, it relates to the prosperity of the economy of a country. As a result, it's a task for the legal system of china to serve the economy by law, including criminal protection on patent.Modern intellectual property system derived from domestic legislation of developed country such as America, and extended to the whole world. There is gap between the economy system and the status of developing country. Although Trips was accepted by the world as a part of the agreement of WTO, but there're interspaces for us to eliminate the negativity by domestic legislation.There's immanent antinomy in patent system, namely, the conflict of personal right to the common wealth. So the key of exclusive law system especially criminal protection is to balance the two rights. Similarly, we need balance the rights between developed and developing countries.Rights on patent relate to personal rights and common wealth, I divide them to three parts in this article: Patent usufruct, which is pure personal right; side right, which relates to both personal right and common wealth; patent management system, which is pure common wealth.There's various criminal legislation on patent in developed countries, but there's few common ground on them. Therefore, we can dig out that the difference in nature is on right the criminal laws protect. Common law attached importance to order protection but civil law attaches importance to personal rights protection. Criminal protections on patent in China are much of order protection, but the criminal legislation is too simple and ivory-towered and can barely accelerate the development of the patent economy.Criminal legislation on patent in China is restricted by many factors. Firstly, we can't violate international agreement (TRIPs). Secondly, the criminal legislation should not clash other law. At last, criminal legislation should make up patent system in existence. Here, we suggest that the criminal lawmaking on patent introduce the polestar of antitrust law to eliminate the limitation of patent system. I agree with the way of not bringing tort of patent into criminal protection in common aw countries. In my opinion, criminal legislation on patent should concentrate on common wealth protections, which are criminal protection and criminal limitation. We should set"aggrieve patent system"clause and"abuse the procedure of administration and judicatory"clause in criminal law. the second one prevents the behaviors which abuse the procedure of administration and judicatory.Finally, the legal punishment in criminal legislation on patent should aggravate, at the same time, the punishment of property and qualification should be combined.