Patent Act Article 198: Offense of False Marking☆
False marking refers to the act of applying a patent marking to items other than patented products.
The act of applying a patent marking to an item that is not a patented product, or the act of transferring, etc., an item (that is not a patented product) to which a patent marking has been applied, constitutes the offense of false marking under Article 197 of the Patent Act.
According to Article 197 of the Patent Act, it is permitted to indicate that a product is a patented product "while the patent right is in effect." This indication is a duty of effort and is not mandatory.
This is a rather difficult part to understand, but it seems that applying a patent marking after the patent right has expired constitutes false marking. This is because, based on a literal interpretation of Article 198 of the Patent Act, the act of indicating that a product is a patented product even though the patent has expired falls under false marking. The act of indicating that a product is a patented product even though 20 years have already passed since the filing and the patent right no longer exists is not permitted.
These are acts that abuse the credibility (transactional advantage) of being a patented product, and are to be regulated from the perspective of public interest. Note that the offense of false marking under Article 197 of the Patent Act is not a crime prosecutable only upon complaint.
Note that the act of indicating "patent pending" on a product, etc., while a patent application is pending does not constitute false marking. Also, the indication of "intellectual property right pending" does not constitute false marking. Thinking about it a little, I think the simplest one is "intellectual property right application filed". With this notation, even if the acquisition of rights fails, it should not become false marking.
・Patent Act Article 198
(Offense of False Marking)
Article 198: A person who violates the provisions of Article 188 shall be punished by imprisonment with work for not more than three years or a fine of not more than 3 million yen.
・Patent Act Article 188
(Prohibition of False Marking)
Article 188: No person shall perform any of the following acts:
(i) The act of applying a patent marking or a marking confusingly similar thereto to an item other than a patented product or the packaging thereof
(ii) The act of transferring, etc., or displaying for the purpose of transfer, etc., an item other than a patented product, which has a patent marking or a marking confusingly similar thereto applied to the item or the packaging thereof
(iii) The act of indicating in an advertisement that an invention of an item is patented, or using a marking confusingly similar thereto, for the purpose of causing an item other than a patented product to be produced or used, or for the purpose of transferring, etc., such item
(iv) The act of indicating in an advertisement that an invention of a method is patented, or using a marking confusingly similar thereto, for the purpose of causing a method other than a patented method of a patented invention of a method to be used, or for the purpose of transferring or leasing such method
●Past Articles
・(~'22/02/03) Patent Act Article 198: Offense of False Marking
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