my country's "Criminal Law" only provides for the crime of counterfeiting others' patents, but does not provide for the crime of patent infringement. Counterfeiting someone else's patent and infringing patent rights are two different behaviors.

Counterfeiting other people’s patents refers to (1) marking other people’s patent numbers on the products or product packages they manufacture or sell without permission;

(2) without permission; (3) Using someone else's patent number in a contract without permission, causing others to mistake the technology involved for other people's patented technology; (3) Using someone else's patent number in a contract without permission, causing others to misunderstand the contract. The technology involved is mistakenly believed to be someone else's patented technology; (4) Forging or altering someone else's patent certificate, patent document or patent application document.

So counterfeiting other people’s patents is actually a form of fraud. The criminal does not have the relevant patent, but falsely claims that he owns the patent, defrauding consumers or contract parties. Therefore, counterfeiting other people's patents destroys the market economic order and affects the interests of the public. The "Criminal Law" includes it among the crimes that undermine the socialist market economic order.

Patent infringement is an entirely different matter. For invention patents and utility models, patent infringement refers to the unauthorized manufacture, use, offer for sale, sale, and import of patented products for production purposes; for patented methods, it refers to the unauthorized use, offer for sale, sale, or import in accordance with the Products directly obtained by the patented method; for design patents, it refers to manufacturing, promising to sell, selling, and importing products with design patents without permission.

So, why is there no crime of patent infringement in the Criminal Law?

Tong said there are two reasons.

First, this is determined by the nature of the patent itself. In reality, intellectual property administrative agencies may grant a large number of invalid patent rights. To obtain a patent, a technology must meet three requirements: novelty, creativity and practicality. Looking at the novelty requirements alone, it is difficult for a patent examiner to ensure that every patent right granted meets the novelty standard. The current novelty requirement adopts the absolute novelty standard, that is, it cannot be published in public publications anywhere in the world and cannot be used publicly by anyone anywhere before the filing date. Due to time, resource and other constraints, it is actually difficult for examiners to perform completely strict checks, so a large number of patent rights may actually be invalid. Some technologies that have been patented may actually have their creativity and practicality questioned. Not to mention utility model and design patents, which do not need to undergo substantive examination.

If the crime of patent infringement is stipulated in the Criminal Law, it may happen that when the procuratorate prosecutes the criminal suspect, the suspect requests for patent invalidation. According to current regulations, the court can only wait for the outcome of the patent invalidation trial before continuing to hear the criminal case. The patent invalidation procedure must first go through the decision of the Patent Reexamination Board. If the party is dissatisfied with the decision, he can also file an administrative lawsuit with the court. If he is dissatisfied with the first instance result, he can continue to file an appeal. This process is often lengthy. The prosecutor's office can only detain the suspect at this time. If it is ultimately proven that the patent is indeed invalid, the suspect can only be released, which may lead to problems such as prosecution errors and extended detention.

Therefore, for patents, which have a relatively complex rights status, the Criminal Law does not consider infringement of patent rights as a crime. On the contrary, the identification of counterfeiting registered trademarks and copyright infringement is much clearer. However, it should also be noted that not all trademark infringements and copyright infringements constitute crimes. The "Criminal Law" stipulates situations where the status of rights is very clear. For example, counterfeit trademarks require the same kind of goods and the same trademark; for other infringements, such as similar goods, similar trademarks, etc., due to the complexity of the status of rights, the "Criminal Law" Not specified. Regarding copyright infringement, it only stipulates the infringement of reproduction rights and distribution rights, and does not provide for the right of deduction, etc. whose rights status needs to be demonstrated.

The second reason is that the content regulated by the "Criminal Law" usually must have a greater impact on the interests of the public. For example, counterfeit trademarks, copyright infringement, etc. may have the consequences of deceiving consumers and affecting the market economic order. For example, if a criminal suspect sells a counterfeit mobile phone to a consumer but puts the Apple brand on it, this is actually what is commonly known as selling fakes. Or criminal suspects sell low-quality pirated optical discs, and consumers' interests may also be harmed. But patent infringement is different.

For example, assuming that certain technologies in Samsung mobile phones infringe on the patent rights of Apple mobile phones, this will not have much impact on consumers. Therefore, patent infringement is actually just an interest dispute between the parties and has little impact on the interests of the public. Therefore, the Criminal Code does not take it into consideration.