An International Guide to
Patent Case Management for Judges

4.9 Patent-related criminal cases

Part 2(III)(7) of China’s Criminal Law¹⁸⁴ stipulates the “crimes of infringing upon intellectual property rights” and includes a total of eight articles (Articles 213–220). Article 216 stipulates the crime of counterfeiting a patent: “Whoever counterfeits other people’s patents, and when the circumstances are serious, is to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, and may in addition or exclusively be sentenced to a fine.”

Article 10 of the Interpretation of Criminal Infringement of Intellectual Property Rights stipulates the following:¹⁸⁵

Any of the following acts shall be deemed as “counterfeiting of the patent of others” as prescribed in Article 216 of the Criminal Law:

1. (1) Marking, without permission, other’s patent number on the manufactured or sold product or its packaging;
2. (2) Using, without permission, other’s patent number in advertisements or other advertising materials, thus misleading people to believe that the technology involved is patented;
3. (3) Using, without permission, other’s patent number in a contract, thus misleading people to believe that the technology as described in the contract is patented; and
4. (4) Forging or altering other’s patent certificate, patent document or patent application document.

Article 4 defines the specific conviction and sentencing criteria for the crime of counterfeiting a patent:

Any person who counterfeits the patent of another and presents it as his/her own shall, in any of the following circumstances, be deemed to have caused “the serious consequences” as prescribed in Article 216 of the Criminal Law, and shall be sentenced to a fixed-term imprisonment for not more than three years or criminal detention for the crime of counterfeiting patent, and/or be imposed a fine:

1. (1) The amount of proceeds arising from illegal business operations is no less than RMB 200,000 or the amount of illegal proceeds is no less than RMB 100,000;
2. (2) The direct economic losses caused to the patentee are no less than RMB 500,000;
3. (3) The person counterfeits two or more patents, with the proceeds arising from illegal business operations being not less than RMB 100,000 or the amount of illegal proceeds being not less than RMB 50,000; and
4. (4) Other circumstances in which the consequences are serious.

According to Article 1 of the Provisions on the Trial of Patent Disputes, the people’s court shall accept cases involving counterfeiting of patents. Article 68 of the Patent Law stipulates the legal liabilities to be assumed for counterfeiting patents:

Where any person counterfeits a patent of another person, then such a person shall, in addition to bearing civil liabilities in accordance with the law, be ordered by the department in charge of patent enforcement to make rectifications, and the department shall make the matter known to the public. Such a person’s illegal earnings shall be confiscated and, in addition, a fine of not more than five times the illegal earnings may be imposed. If there are no illegal earnings or the illegal earnings are less than RMB 50,000, a fine of not more than RMB 250,000 may be imposed. Where the infringement constitutes a crime, then such a person shall be investigated for criminal responsibility in accordance with the law.

Article 84 of the Rules for the Implementation of the Patent Law further stipulates five specific circumstances under which an act constitutes an act of counterfeiting a patent. It is worth noting that the scope of “counterfeiting the patent of another person,” as defined in the Rules for the Implementation of the Patent Law, is broader than that in Article 216 of the Criminal Law. For instance, the former also includes “any other acts of misleading the general public into considering a technology or design which has not been granted a patent, as being patented.”