The Judgment Of Industrial Design Infringement

Art is idea, and designer is the craft man of ideas. As product designers understanding of the importance of patent for design improvement, design patent applications in China increased steadily, design patent infringement case have continued to increase, design patent protection of the theoretical study and academic research has gradually become a hot spot. Design patent is to prevent unauthorized use of a same or substantially the same rights to the design, the design is not intended to give protection to prevent confusion, but to encourage innovation and reasonable design infringement criteria shall be to protect innovation and to encourage design innovation. However, the current theoretical exist considerable controversy on these issues, as reflected in judicial practice, a judge of the design patent infringement is no uniform standard, resulting in different courts on the same factual findings inconsistent. This paper mainly through the analysis of typical cases, and combining the current domestic and international judicial practice and theoretical results of design infringement, analyzing the present design by mainstream standards of patent infringement-confusion standard, summarizes design patent infringement should not be determined in order to prevent confusion as the starting, and starting point should be to protect the innovation, that is, without the authorization of the patentee, for the purpose of production and operation of manufacturing, selling, offering for sale, import patented design innovations include the design part, that is charged with Infringing products fully into the scope of design patent protection is the essence of the design elements of patent infringement. However, if the accused infringing product design right owner does not fall into the scope of protection of patent right for design, does not constitute infringement. Then the paper tries to explore the establishment of a more rational, more in line with the purpose of patent law criteria of legislation-the standard for innovation in order to improve the design and development of the legal regime, to eliminate a large number of "junk patents" exists, to prevent the serious situation of duplication licensing, truly realize the social function of our design system, "the fire of genius added the fuel of interest".