Discussion On The Exercise Of The Right To Affix Patent Marking

The right to affix patent marking, as one of the patent rights, plays a significant role in information disclosure, warning and advertising. However, the current Patent Law and its implementation rules fail to provide for the specific contents of the right, and there also exist deficiencies of the provisions on the right and the exercise thereof. Taking the relevant provisions on patent marking in the new Patent Law as a starting point, this article emphasizes on the discussion of the right to affix patent marking and the exercise thereof, improper exercise of the right and the consequential legal liability; analyzes and points out the deficiencies of the current laws and regulations through comparison with the legislation in other countries and regions, and thereby puts forward the relevant advices on legislation.This article is divided into four parts:The first part is about patent marking and the right to affix patent marking. The previous"patent symbol and patent number"were unified as"patent marking"by the newly revised Patent Law in 2008. On that basis, this article starts off by discussing the practical significance of"patent marking"from the technical, legal and economic perspectives according to the basic meaning of"patent marking". Then, extending from"patent marking"to"the right to affix patent marking", this article goes on to analyze and discuss the basic concept and the ways of exercise of the right to affix patent marking. It is argued that the right to affix patent marking shall refer to the right lawfully enjoyed by the patentee and the relevant obligees to affix patent marking on the product and its package, manual, advertisement and other carriers, etc. Accordingly, there are three specific ways to exercise this right, namely, affixing patent marking on patent products, affixing patent marking on the packages of patent products and affixing patent marking on the manual, advertisement or other carriers of the products. In addition, this article summarizes the history of the relevant provisions on"patent marking"and"the right to affix patent marking"in our Patent Law and its implementation rules.The second part is about the acts of improper exercise of the right to affix patent marking and the legal liability arising therefrom. First, the acts of improper exercise of the right to affix patent marking mentioned herein mainly refer to those acts provided in Items 1, 2, 3 and 5 of Paragraph 1 of Article 84 of the implementation rules of the current Patent Law, which, in terms of logic, identifies that the acts of improper exercise of the right to affix patent marking are part of fake patent acts, and that the former is included in the latter. Accordingly, this article divides the acts of improper exercise of the right to affix patent marking into two categories for discussion purpose, namely, the acts of affixing fake patent marking and the acts of infringing other's right to affix patent marking. This article respectively discusses the civil liability, administrative liability and criminal liability arising from the acts of improper exercise of the right to affix patent marking.The third part is the comparison and analysis of legislation in several countries and regions concerning the right to affix patent marking. This article mainly studies the legislation statuses in America, Germany, Japan and Taiwan concerning the right to affix patent marking, and attempts to conduct a comparative study from three perspectives, namely, the scope of subjects to exercise the right to affix patent marking (from the perspective of an individual and an act), the exercise of the right to affix patent marking (type of obligation and type of right) and the legal regulations over the acts of improper exercise of the right to affix patent marking (focusing on patent law and non-patent law), concluding and summarizing those legislation experience which bears significance of reference.The fourth part is about the deficiencies and perfection of the relevant provisions of the current Patent Law and its implementation rules. This article illustrates those deficiencies from four perspectives, namely, the provisions on the specific contents of patent marking, provisions on the scope of subjects of the right to affix patent marking, provisions on the definition of acts of improper exercise of the right to affix patent marking and the legal regulations over the acts of improper exercise of the right to affix patent marking, and accordingly puts forward legislation advices for perfecting the design of the relevant system.