Improvement Of The System Of Counterfeiting Patent

The current legislation has the most deterrent criminal responsibility for the allocation of counterfeit patents.However,the phenomenon of counterfeit patents is intensifying.The number of counterfeit patent cases investigated continues to rise,but few are found to constitute crimes,indicating that this kind of deterrence has not played its due role.There are institutional reasons for this phenomenon.my country’s "Criminal Law" defines the objective behavior covered by the crime of counterfeiting patents as counterfeiting others’ patents.At the same time,this definition has a presupposition that such behavior would infringe the interests of patent holders.However,there are two errors in this kind of presupposition: First,counterfeiting a patent of another person is not essentially a patent infringement.From the perspective of patent infringement,it will not harm the interests of the patentee;second,when the patent number has Under the premise of source identification,counterfeiting others’ patents will infringe the interests of patent owners.But in this case,the protection obtained by the patent number should be similar to unregistered well-known trademarks,but unregistered well-known trademarks cannot be protected by criminal law.Therefore,the infringement of the patentee’s interests presumed by the crime of counterfeiting patents does not exist,even in rare cases.Compared with the protection of unregistered well-known trademarks by criminal law,it does not have the justification of criminal law protection.For this reason,it is necessary to appropriately classify counterfeit patents,explore the legal interests infringed by each type,and adjust the provisions of the existing legislation on the principle that criminal law should treat the same legal interests equally.When the Patent Law was revised in 2008,fake patents were included as fake patents.Counterfeit patents can be classified as counterfeiting others’ patents and impersonating patents.In essence,the legal interests of counterfeiting others’ patents in general include the management order of the patent system,the interests of competitors in the same industry,and the rights and interests of consumers.Only when the patent number has a source identification function will it infringe a specific patentee Interests.The infringement of competition interests and consumer rights in the same industry is a legal interest that counterfeit patents are essentially infringed by false propaganda.In the current Anti-Unfair Competition Law,false propaganda does not bear criminal responsibility.Counterfeit patents infringe on therights and interests of competitors and consumers in the same industry and should not be subject to penal regulations.Even in rare cases,when a patent number has a source identification function,it can only obtain the protection that an unregistered trademark should deserve.On the premise that the criminal law does not provide criminal law protection for unregistered well-known trademarks,the criminal law also Criminal law protection should not be provided for acts of counterfeiting others’ patent infringements.For this reason,although the crime of counterfeiting patents provides for counterfeiting others’ patents,it is essentially because this kind of behavior violates the management order of the patent system.In contrast,the legal benefits of impersonating patent infringement include the management order of the national patent system,the interests of peer competitors and the rights and interests of consumers.The infringement of the interests of peer competitors and consumers is essentially a false propaganda act.Under the premise that the Anti-Unfair Competition Law does not provide criminal regulations for false propaganda acts,these two legal benefits should not be violated and should not be obtained.Criminal law protection.If the criminal law restricts the counterfeiting of another’s patent because it violates the national patent management order,then the crime of counterfeiting a patent should also regulate the act of impersonating a patent.To this end,on the basis of investigating foreign legislation,there are two schemes to improve the system of counterfeiting patents: one is to modify the crime as a false patent marking crime,and its objective behavior is to falsely mark the patent status;the other is to counterfeit patents The objective behavior of the crime was "counterfeiting others’ patents" instead of "counterfeiting patents".In order to break the legal conflict between the "Patent Law" and the "Criminal Law" and maintain the stability of the "Criminal Law",Option 2 is more in line with my country’s criminal regulations on counterfeiting patents.