Abstract: The patent system was born in Venice in the 15th century and was rapidly adopted all over the world in the following hundreds of years. In today's knowledge-based economy, the patent system plays an important role in promoting technological advancement and social development. While the patent system brings great economic benefits to patentees, the huge commercial value embodied in the patent system has made opportunists cause upheaval through frequent patent infringement acts and crimes, which include unauthorized exploitation of patents of another person, counterfeiting patents of another person, passing non-patented products off as patented products, etc. Given the prohibition on the analogical application of the Criminal Law to patent protections as to how it applies to trademark protections and the modesty principle of the Criminal Law, the current Criminal Law of Mainland China only provides for one type of patent crime, i.e. the crime of patent counterfeiting, which is insufficient in respect to patent protection. This article, on the basis of a study of criminal legislation on patent infringement of other countries and regions, provides several suggestions to improve the criminal legislation of China on patent infringement from a perspective of judicial practice.

1. Overview Of Crimes Of Patent Infringement

1.1 Overview Of Patent System
The patent system is an important part of the intellectual property system. "The patent system was born in Venice in the 15th century, and was rapidly adopted all over the world in the following hundreds of years. From the steam engine age, electric age, information age and biological age to today's internet age, the patent system has been playing an important role in promoting technological advancement and social development." [1]

The so-called patent system is a system where an invention or creation for which a patent is applied shall be scientifically scrutinized in accordance with a patent law and shall be granted a patent if the invention or creation is in compliance with the provisions of the patent law, and, in the meantime, the invention or creation is required to be disclosed to the public so as to facilitate technology exchange and transfer.[2] "Monopoly" and "disclosure" constitute two basic characteristics of the patent system. The "monopoly" refers to the exclusive right to exploit a patent by a technology inventor for a fixed period of time, where the patentee shall be entitled to control the patented technology and set the corresponding products' prices higher than those in the same business so that the innovation cost can be recovered. On the other hand, the "disclosure" is made by a patentee to disclose the patented technology to the public in return for the exclusive right to exploit the patent granted by law so that the public will have accessibility to the patented technology and technological development and social progress can be promoted. Thus, the modern patent system embodies the thought of a combination of monopoly and disclosure.

In the legal context, the word "patent" is referred to as a patent right, which is an exclusive right enjoyed by an inventor or creator who files a patent application with a patent administration authority and whose invention or creation meets the relevant requirements in accordance with laws.[3] According to Article 11 of the "Patent Law of the People's Republic of China" (the "Patent Law"), after the grant of a patent right for an invention or a utility model, unless otherwise provided for in this law, no entity or individual is allowed to, without the permission of the patentee and for purposes of production or business, exploit the patent, that is, to make, use, offer to sell, sell, or import the patented product, or use the patented process and use, offer to sell, sell, or import the product directly developed from the patented process. After a design patent is granted, no entity or individual is allowed to, without the permission of the patentee and for purposes of production or business, exploit the patent, that is, to make, use, offer to sell, sell, or import the design patented product. Thus, it can be concluded that the patent right mainly covers the right to make, use, offer to sell, sell, import, transfer and grant authorization. Besides, the patent right also includes the right of patent marking and the right of authorship, etc.

1.2 Basic Types Of Patent Infringement Acts
As the knowledge economy age exists today, the patent system is playing a great role in promoting economic and technological development. However, while the patent system brings great economic benefits to patent holders, the huge commercial value embodied in the system has made opportunists cause upheaval through frequent patent infringement acts and crimes. The legislation of different countries provides for different types of patent infringement acts.

Subclause (1) and (2) of Article 60 of The Patents Acts of the United Kingdom provide as follows: (1) Subject to the provisions of this section, a person infringes a patent for an invention if, but only if, while the patent is in force, he does any of the following things in the United Kingdom in relation to the invention without the consent of the proprietor of the patent, that is to say - (a) where the invention is a product, he makes, disposes of, offers to dispose of, uses or imports the product or keeps it whether for disposal or otherwise; (b) where the invention is a process, he uses the process or he offers it for use in the United Kingdom when he knows, or it is obvious to a reasonable person in the circumstances, that its use there without the consent of the proprietor would be an infringement of the patent; (c) where the invention is a process, he disposes of, offers to dispose of, uses or imports any product obtained directly by means of that process or keeps any such product whether for disposal or otherwise. (2) Subject to the following provisions of this section, a person (other than the proprietor of the patent) also infringes a patent for an invention if, while the patent is in force and without the consent of the proprietor, he supplies or offers to supply in the United Kingdom a person other than a licensee or other person entitled to work the invention with any of the means, relating to an essential element of the invention, for putting the invention into effect when he knows, or it is obvious to a reasonable person in the circumstances, that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom.

Section 271 of Title 35 of the United States Code provides as follows: (a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. (b) Whoever actively induces infringement of a patent shall be liable as an infringer. (c) Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination, or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.

Article 11 of the "Patent Law" of mainland China provides that, after the grant of a patent right for an invention or utility model, unless otherwise provided for in this law, no entity or individual is allowed to, without the permission of the patentee and for the purposes of production or business, exploit the patent, that is, to make, use, offer to sell, sell, or import the patented product, or use the patented process and use, offer to sell, sell, or import the product directly developed from the patented process. After a design patent is granted, no entity or individual is allowed to, without the permission of the patentee and for the purposes of production or business, exploit the patent, that is, to make, use, offer to sell, sell, or import the design patented product.

Based on the abovementioned legislation samples and the current legislation of mainland China, the basic types of patent infringement acts can be summarized as follows:

1.2.1 Direct Patent Infringement Acts

Direct patent infringement acts refer to acts carried out by a person who directly harms the interests of a patentee, such as illegally manufacturing or selling patented products.[4] The direct patent infringement acts mainly include the following types:

1.2.1.1 Patent Exploitations Without The Permission Of Patentees

The abovementioned word "exploitations" differs in its meaning when applied to patents of different natures. According to Article 11 of the Patent Law, for product patents of inventions and utility models, it refers to manufacturing, using, offering to sell, selling and importing for the purposes of production or business; for patents of methods, it refers to using patented methods as well as using, selling, offering to sell, and importing products directly developed through patented methods, where products not directly developed through patented methods are excluded; and for design patents, it refers to manufacturing, offering to sell, selling, and importing design patented products for the purposes of production or business.

1.2.1.2 Patent Counterfeiting And Patent Passing Off

Patent counterfeiting traditionally refers to the following acts: (1) Marking a patent number of another person on products or packages of products without the permission of the patent holder; (2) Using a patent number of another person without authorization in advertisements or any other promotional materials so as to mislead the public to regard the technology concerned as patented technology of the other person; (3) Using a patent number of another person without authorization in a contract so as to mislead the public to regard the technology referred to in the contract as patented technology of the other person; and (4) Counterfeiting or transforming a patent certificate, patent document or patent application document of another person. Patent passing off refers to acts of passing non-patented products off as patented products or passing non-patented methods off as patented methods, which mainly include the following circumstances: (1) Manufacturing or selling non-patented products affixed with patent markings; (2) Continuing the use of patent markings on products manufactured or sold after the patent concerned is declared invalid; (3) Alleging any non-patented technology as patented technology in advertisements or any other promotional materials; (4) Stating any non-patented technology as patented technology in a contract; and (5) Counterfeiting or transforming any patent certificate, patent document or patent application document.

It should be noted that Articles 84 and 85 of the original "Implementing Rules of the Patent Law" have been integrated into Article 84 of the current "Implementing Rules of the Patent Law" Amended in 2010, which was amended to read as follows: "Any of the following is an act of passing off a patent as provided in Article 63 of the Patent Law: (1) affixing a patent marking on a product or on the package of a product which has not been granted a patent, continuing to affix a patent marking on a product or on the package of a product, after the related patent right has been declared invalid or is terminated, or affixing the patent number of another person on a product or on the package of a product without authorization; (2) sale of the product as prescribed in subparagraph (1); (3) indicating a technology or design to which no patent right has been granted as patented technology or a patented design, indicating a patent application as a patent or using the patent number of another person without authorization, in such materials as specifications of a product etc., which could mislead the public to regard the related technology or design as patented technology or a patented design; (4) counterfeiting or transforming any patent certificate, patent document or patent application document; (5) any other act which might cause confusion on the part of the public, misleading them to regard technology or a design to which no patent right has been granted as patented technology or a patented design." This is, as a matter of fact, to unify the provisions of patent counterfeiting by combining the provision of counterfeiting patents of another person and the provision of patent passing off.

1.2.2 Indirect Patent Infringement Acts

Indirect patent infringement acts refer to circumstances where a person actively induces or motivates another person to carry out direct patent infringement acts. Specifically, the acts of inducing or motivating another person to carry out direct patent infringement acts may not necessarily cause infringement of a patent; however, such acts may lead another person to actually commit direct infringement of a patent.[5] This type of indirect patent infringement act is similar to the acts of instigation or assistance provided in the Criminal Law.

1.3 Crimes Of Patent Infringement From The View Of The Relationship Between Civil Torts And Criminal Offences

According to criminal law theories, the social relations regulated by criminal laws are extensive. Certain social relations protected and regulated by civil laws or administrative laws also need the protection and regulation of criminal laws, and patent infringement acts are no exception, which is determined by the relationship between civil torts and criminal offences. "In terms of facts, the relationship between civil torts and criminal offences is like the one between a younger brother and an older brother of the same family, where civil torts can be compared to the younger brother and criminal offences can be compared to the older brother. The degree of social harm caused by the infringement acts determines the nature of the liability to be taken by the actor. In other words, the standard of defining whether an infringement act is a civil tort or criminal offence should be the degree of social harm caused by the infringement act."[6] From a legal point of view, the relationship between civil tort liabilities and criminal liabilities is like the relationship between water and ice. When circumstances for a civil tort liability meet certain conditions, the degree of social harm is elevated, and the civil tort liability will transform into criminal liability, which is like water turning into ice when it reaches the point of zero degrees.

It is generally sufficient to regulate patent infringement acts in the scope of civil laws by imposing civil liabilities, including stopping infringement acts or indemnifying for damages, on the wrongdoers so as to crack down on patent infringement, protect legitimate rights and interests of right holders, and remodel the justice and stability of social relations. However, civil laws will appear to be insufficient when patent infringement acts are serious to a certain degree and are transformed into crimes, which can only be penalized by stringent criminal laws. This is how patent infringement acts are transformed into crimes.

"Civil torts and criminal offences are based on the same precondition that actors of civil torts and criminal offences all carry out unlawful acts, while the only difference lies in the degrees of social harm caused by them. When the severity of a civil tort reaches a certain critical point, the civil tort is transformed into a criminal offence, which is a process of quantitative change to qualitative change."[7] Therefore, it can be concluded that civil torts and criminal offences of patent infringement have a family resemblance in legal relations, where civil torts are less serious "crimes", and crimes are more serious "torts". The abovementioned "torts" and "crimes" are analyzed from the perspective of legal liabilities. In order to protect the legitimate rights and interests of patent holders, general patent infringement acts only need to be subject to civil liabilities; however, for patent infringement acts that are more serious in terms of social harm, civil liabilities are insufficient to penalize the viciousness of such acts, so severe criminal penalties should be imposed on such acts so as to restore the fairness and justice of society.

Theoretically, the abovementioned basic types of patent infringement acts, including acts of exploiting patents of another person without authorization, counterfeiting patents of another person and indirect patent infringement acts, can be transformed into patent crimes as long as the severity of the acts reaches a certain degree or the circumstances are serious. However, to date the Criminal Law of mainland China provides only for one type of patent crime, i.e. the "crime of patent counterfeiting". According to the principle of legally prescribed punishment for a specified crime, or the principle of "nullum crimen sine lege, nulla poena sine lege (there must be no crime or punishment except in accordance with fixed, predetermined law)", the acts of exploiting the patents of another person without authorization cannot be subject to criminal penalties.

Reference

[1] Zhang Yumin, Zhang Jin and Zhang Ping: "Intellectual Property Law", Beijing, China Renmin University Press, 186 (2009).
[2] Wu Handong et al.: "Research on Basic Issues of Intellectual Property Right (Specific Issues) (Second Edition)", Beijing, China Renmin University Press, 194(2009).
[3] Lai Xiaopeng: "Intellectual Property Law", Beijing, China University of Politic Science and Law Press, 165 (2008).
[4] Wu Handong et al.: "Research on Basic Issues of Intellectual Property Right (Specific Issues) (Second Edition)", Beijing, China Renmin University Press, 321(2009).
[5] Wu Handong et al.: "Research on Basic Issues of Intellectual Property Right (Specific Issues) (Second Edition)", Beijing, China Renmin University Press, 321(2009).
[6] Zhao Wei: "Theoretical Relations and Practical Treatments of Civil Torts and Criminal Offences", Page 58, Selected Masters' Dissertations of 2002, Heilongjiang University.
[7] ibid, Page 58.