Civil And Criminal Liability Of Counterfeiting Patent And The Improvement Of Its System

The act of counterfeiting a patent and the act of infringing a patent are respectively two kinds of illegal behaviors with differences between each other,furthermore a crime of passing off the patent of another person and infringement of one's patent are mutually exclusive to each other as well as a crime of passing a non-patented product off as a patented product or passing any non-patent process off as a patented process and infringement of a patent.The crime of passing off the patent of another may substantially not means a infringement of “the right of affixing a patent marking” which the law gives to the patentee,on account of that false marking wouldn't necessarily lead a disastrous effect that seriously enough to mistaking the patented products for the products illegally produced by the mass of consumers.The term “mass consumer's mistaking” should be one element to constituent a confirmation or a definition of weather it is in real sense a crime of counterfeiting of a patent.There consist all elements to committing a behavior of false promotion in the behavior of counterfeiting of a patent.Therefore,the behavior of counterfeiting of a patent can be considered as a special situation in patent field in false promotion.At the same time,we can case that the “behavior of false promotion” was not the only cause as well as not inevitably to lead to a “mass consumer's mistaking”.Consisting ambiguous expresses or a second meaning that is potential or falsehood in description of a product is the cause of the happening of the former one.For the later one,there are two separate conditions: for the first one,the “mistaking” does not occur for the mass consumer removed the “false information” and only keep the real one by one's self-judgments although they received all information;for the second one,there are less of basis to occur the “mistaking” for the mass consumer only received the real information by one's self-judgment.In summary,it cannot be considered as a counterfeiting of a patent when there are no “mass consumer's mistaking” that occurred by the said “false” promotions;while the situation that a “mass consumer's mistaking” cause by a real promotion must be an addition to current laws and regulations as counterfeiting.The civil subjects directly suffered from any types of counterfeiting of a patent are other managers who suffered a competitive loss,according to the type analysis of different way of counterfeiting of a patent.The criminal object of counterfeiting of a patent is the rules of civil patent managementand the legal rights of public as well as passing a non-patent product or process off as a patented product or process,and sum up a conclusion that the behavior of passing a non-patent product or process off as a patented product or process should be amended to the adjust scope of the law for it's seriously effect to the public.Based on this,we should adjust the provisions of the civil and criminal liability system for counterfeiting patent acts in China.