The Application And Perfection Legislation Advice Of Paragraph 3 Of Article 23 Of Patent Law

For the purpose of solving the conflicts between the design patent rights and trademark rights appearing in the middle and later periods of 90s in the last century, the second amendment of Patent Law and Implementation Rules of Patent Law provided that design should not be in conflict with the prior legitimate rights of others as one of the conditions for the patent granting of design. In practice, that design should not be in conflict with the prior legitimate rights of others has not been used as the condition for granting patent, conversely, it is mainly utilized in the annulment declaration; currently, we usually take protecting prior rights as the principle in the annulment declaration of design patent.On the basis of the statement of basic concepts and major types of design patent should not be in conflict with the prior rights, this paper elaborates that"design should not be in conflict with the prior legitimate rights of others"as one of the substantial conditions for conferring design patent and the reasonability of its application in the annulment declaration. Then, in combination with the solution of Japan, Europe Union and America to the conflicts between the design patent rights and prior rights, this paper finally proposes legislation suggestions of drawing lessons from the methods of interests balance adopted by Japan.