Usually not. Copying or selling a patented product without a licence is a civil dispute in China – the patent owner sues for an injunction and damages. It becomes a criminal case only when you “pass off” someone else’s patent as your own: forging their patent certificate, or printing their patent number on your own product, packaging, contract, manual or advertisement. That is counterfeiting another person’s patent under Article 216 of the Criminal Law, punishable by up to three years.
1. When does patent infringement become a crime?
Article 216 of the Criminal Law provides that a person who counterfeits another person’s patent, where the circumstances are serious, is punishable by fixed-term imprisonment of up to three years or criminal detention, plus a fine.
The 2025 judicial interpretation – the Supreme People’s Court and Supreme People’s Procuratorate Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Intellectual Property Infringement (Fa Shi [2025] No. 5, effective 26 April 2025) – fills in the detail. Its Article 9 defines three forms of counterfeiting another person’s patent: forging or altering another person’s patent certificate, patent documents or patent application documents; marking another person’s patent number on your own product or packaging without permission; and using another person’s patent number in contracts, product manuals or advertising in a way that misleads people into thinking it is your own invention, utility model or design.
Article 10 then sets the “serious circumstances” threshold: illegal gains of 100,000 yuan or more, or illegal business turnover of 200,000 yuan or more; direct economic loss to the patent owner of 300,000 yuan or more; counterfeiting two or more patents with illegal gains of 50,000 yuan or turnover of 100,000 yuan; or repeating the conduct within two years after an administrative or criminal penalty at those lower figures.
2. What this means in practice
Ordinary infringement stays civil. The real trap for companies is a marketing decision: putting a competitor’s patent number on your packaging, or describing your product as using their patented technology, is not harmless sales talk – it is the second and third form of the Article 216 offence. Foreign patent owners can pursue this route, and the 2025 interpretation deliberately lowered the entry threshold, so the room for “we only copied the look” arguments is narrowing.
3. A common scenario
A domestic manufacturer copies a European company’s device and, to look credible, prints the European company’s patent number on the box. No licence exists. This is not only unfair competition: the patent number on the box brings the conduct within Article 216 and Article 9(2) of the 2025 interpretation. If turnover from those goods reaches 200,000 yuan, it crosses the criminal line.
4. Key takeaway
Taking someone’s patented design is a civil problem. Putting their patent number on your product is a criminal one. Audit your packaging, manuals and advertising before you ship.
5. FAQ
Q: Can I go to jail just for copying a patented product?
A: Not for the copying itself – that is a civil matter. The crime is counterfeiting someone’s patent, for example forging their patent certificate or printing their patent number on your product.
Q: What is the punishment?
A: Article 216 provides fixed-term imprisonment of up to three years or criminal detention, plus a fine.
Q: How much do I have to make before it is “serious circumstances”?
A: Under the 2025 interpretation, illegal gains of 100,000 yuan or turnover of 200,000 yuan; or direct loss of 300,000 yuan to the patent owner; or the lower figures of 50,000 and 100,000 yuan for two or more patents or repeat conduct.
Q: Does this apply to foreign companies’ patents?
A: Yes. The provision protects patent rights regardless of the owner’s nationality, and foreign owners can pursue both civil and criminal routes.
Q: I only used their patent number in an advertisement, not on the product.
A: That is still covered. Article 9(3) of the 2025 interpretation includes using another person’s patent number in contracts, product manuals or advertising materials in a misleading way.
Wang Guan | Co-founder, Beijing Haolue Law Firm | +86 17813108512