对假冒专利的探讨

Inquiry into Passing off Patent

中国《专利法》及其实施细则将假冒专利行为划分为假冒他人专利行为和冒充专利行为,将未经许可使用他人专利号的行为界定为假冒他人专利的行为。理论界普遍认为,专利权人享有专利标记权,未经许可使用他人专利号的行为侵犯了他人的标记权,属于假冒他人专利的行为。本文作者对此提出质疑,认为专利号没有区别功能,不是专利权的客体,现行法律将假冒他人专利与冒充专利相区别是不妥的,建议将二者统一规定为冒充专利或假冒专利。

Under the Chinese Patent Law and the Implementing Regulations thereof,acts of passing off patents are divided into acts of passing off others'patents as ones'own and acts of passing off patents.Acts of unauthorised use of others' patent numbers are defined as acts of passing off others' patents as ones' own.It is generally held in the theoretic community that a patentee enjoys the right to affix a patent marking,and an act of unauthorised use of another person's patent number is an infringement of his right to affix a patent marking,which falls into the category of passing off another person's patent as his own.Challenging this,these writes argue that the patent number does not perform the distinguishing function,nor is an object of the patent right.It is inappropriate to distinguish passing off others' patents as ones' own from passing off patents in the current law; hence,it is suggested that the two be uniformly specified as passing off patents.