On Infringement Of Patent And False Marking

How to draw a line between patent infringement and false marking has been a controversial issue in China because of legislation confusion and understanding difference between intellectual property and criminal law scholars. Some actors bore inadequate legal liability due to some misleading theories. In foreign countries, however, little controversy was found on difference between patent right and false marking, either in the continental law system or in Anglo-American legal system.The language difference is often ignored in domestic researches. Two translations in Chinese are available for the phrase "patent infringement"—patent infringement and patent-related right infringement. "False marking" is usually defined as a right relating to patent, while in Chinese this patent-relating right is inclined to be confused as the content of patent because of irregular phrase usage. So the meaning of "infringement" and "tort" are introduced in this paper to elaborate difference between patent infringement and false marking, which is the most effective and essential method to draw a line between them.China has only experienced a comparatively short patent history and many laws of foreign countries were introduced or referenced during legislation in Patent Law of China. Given the incomplete material resources and lack of experience, some articles once misled the judicial practice. Thanks to the second and third amending of Patent Law of China, these misleading articles were corrected while some detailed has yet left to be clarified.In reference with foreign patent laws, especially U.S.A, the difference on patent right and false marking was first found between two countries. By comparison, the regulation in US patent law may render some suggestions to the patent law of China. The differentiation between patent right and false marking may also be useful to review the relationship between Patent Law and the Anti-unfair Competition Law in China.