完善假冒专利罪适用建言的反思

Reflection on Proposals for Perfecting the Application of the Crime of Counterfeiting Patent

近年来学界对于完善假冒专利罪适用提出了诸多建言,比如废除自诉、扩充犯罪客观方面、提升刑事案件数量等。刑法、刑事诉讼法及相关司法解释未采纳上述建言说明当前假冒专利罪的实体和程序方面的设计仍较为符合现实需要。保留专利权人的自诉权更有利于维护自身合法权益最大化。冒充专利、专利侵权等行为既无必要纳入假冒专利罪客观方面,也并不缺乏特殊情况下按他罪追究刑事责任的可能。现行专利行政执法与刑事司法衔接机制在权力配置较为科学合法,没有必要为了提升假冒专利刑事案件数量予以改造。司法机关对专利保护的热情应与市场需求相契合,现阶段没有必要将假冒专利罪适用作为彰显工作成效的突破口。

In recent years many proposals on perfecting the application of the crime of counterfeiting patent have been put forward in the academic circles,such as abolishing private prosecution,expanding the objective aspect of crime and increasing the number of criminal cases. But the criminal law,criminal procedure law and related judicial interpretations did not adopt the suggestions,indicating that the current entity and procedural design of the crime of counterfeiting patents is still in line with practical needs. Retaining the rights of private prosecution of the patentees is more conducive to safeguarding the maximization of their own legitimate rights and interests. Acts like passing off patents or patent infringement do not need to be included in the objective aspects of the crime of passing off patents,but their criminal liabilities can be investigated on the special cases. As is known that the current patent administrative enforcement and criminal justice linkage mechanism is scientific and legal in power allocation,so it is less necessary to reform to increase the number of criminal cases of counterfeiting patents. Judiciary’s enthusiasm for patent protection should be in line with market demands. At this stage there is no need to take the application of the crime of counterfeiting patent as a breakthrough to highlight the effectiveness of the work.