冒充专利行为犯罪化的必要性及 完善建议

Abstract

In the critical period of China’s rapid economic development, China’s relevantdepartments and legal protection of intellectual property rights are becoming moreand more important. In June 2008, the State Council issued the outline of nationalintellectual property strategy, which established the strategic goal of building Chinainto an innovative country. The effective protection of patent system plays animportant role in promoting the construction of an innovative country and thestrategy of rejuvenating China through science and education. However, with therapid development of China’s economy, the number of patent applications andauthorizations has increased significantly. With the rapid development of economy,patent infringement has also begun to show a trend of diversification and complexity. Some of these patent infringement behaviors can not be effectively protected only bycivil and administrative means. Therefore, it is necessary to strengthen the criminalprotection of patent rights. There are two kinds of counterfeiting patents andcounterfeiting patents The former can constitute a crime, while the latter violatesadministrative regulations and does not violate criminal law. However, the socialharmfulness of counterfeiting patent is equivalent to that of counterfeiting patent. When amending the patent law in 2008, China’s legislature redefined the legalliability of patent counterfeiting, clearly stipulating that those who are serious enoughto be prosecuted for criminal responsibility. However, the subsequent amendment tothe criminal law did not make corresponding amendments to the relevant provisions,resulting in the failure to implement the original legislative intent of the patent law. Therefore, China’s criminal law only provides criminal punishment for the act ofcounterfeiting other people’s patent, but does not make relevant provisions on the actof counterfeiting patent. Therefore, this paper analyzes the status quo of the act ofcounterfeiting patent and foreign legislation, and puts forward the necessity andimprovement suggestions of criminalizing the act of passing off patent.