专利标注行为的权利义务属性探讨

Discussion on the Rights and Obligations of Patent Marking Behavior

对于专利标注行为,中国与美国的专利法规定不尽相同。美国专利法中将其规定为专利权人行使损害赔偿权时可选择履行的前提条件,该规定实际为一种义务性规定。同时,该义务性规定并未违反《巴黎公约》的相关规定。而中国专利法中一直将专利标注行为规定为专利权人的一种权利,该规定不尽合理。笔者建议应当将专利标注行为做引导性规定,将其规定为专利权人的一项义务。同时,目前阶段可不规定专利权人不履行该义务的不利后果。

The patent laws of China and the United States are different for the provision of patent marking. In the patent law of the United States, it is stipulated that the patent holder can choose to perform when he want to exercise the right of compensation for damages, and this provision is actually a voluntary provision. At the same time, the voluntary provision did not violate the relevant provisions of the Paris Convention. In China＇s patent law, patent marking has been stipulated as a right of the patent holder, the rule is not reasonable. The author suggests that the patent marking behavior should be guided; it should be stipulated as an obligation of the patent holder. At the same time, the present stage does not stipulate the adverse consequences of the failure of the patent holder to fulfill the obligation.