Research On The Ascertainment Of Infringement Upon Design Patent

There are two different roads in the judgment of infringement of thedesign patent because it possesses some nature of both trademark andpatent: Trademarks mode of protection or Patent mode of protection, whichmeans the principle of confusion and the principle of innovation. Selectingdifferent judgment road will need the judge body, the premise and methodsconform to it. Because of the embarrassing position of design patent,ultimately I take the compromising road.The first part focuses on the basic theory of the design patent.Introducing the concepts, characteristics and scopes of the protection, aswell as the four forms of the violations of design patent. The scope ofprotection may change when the judge body,the premise,the method arechanged. Besides this part focuses on the differerces of designs andtrademarks, patents and utility models,designs focus on the protection of itsownself but trademark focuses on the protection of goodwill. Designpatent is external, a decorative role, but patent is a intrinsic role throughthe inner thinking.The second part focuses on the choice between the principle ofconfusion and the principle of innovation. The confusion principleemphasizes that the consumers tend to be confused, while the innovationprinciple stresses on the creativity of the design. China adopts the principle of confusion, but its defects should not be neglected, that is, the principledoes not conform to the legislative value of the patent law. The design doesnot aim at distinguishing the source of the products. Therefore, theprinciple of confusion fails to provide a comprehensive protection for thoseconfusion-lacking designs due to the strong subjectivity and arbitrariness ofconfusion. On the contrary, the innovation principle has the followingadvantage: it does not expand the scope of the rights of the earlier designs,which is in accordance with the common practice of the world. Moreover,it will boost innovation, and make up the loophole of confusion principle.But the principle of innovation also has its flaw: the principle of innovationis not always applicable to design patent. The design is not all be protectedby the patent law, so it’s difficult to unify the authorization standard and theinfringement standard. There is no mature systematic environment.The third part focuses on the standard of the judgment object. Thesubject of the confusion principle is the average consumer, while theinnovation principle requires ordinary designers. The average consumerstandard is adopted by China. The average consumer refers to the consumerin law, rather than the consumer in reality. However, it still has thefollowing disadvantages: it conflicts with the innovative value with itsuncertainty. And the existing designs have little room to improve.The fourth part focuses on the premise of judgment. The confusionprinciple bases on the same or similar product categories, while theinnovation principle need to break through the basis. The basis has thefollowing problems: the classification of the products does not match thesocial reality. There is no unified standard for use and tend to ignore theindependent value of the design.The fifth chapter is about the methods of judgment. The practice inChina, on the basis of visual experience, has taken the principle of “OverallObservation”, which also taken the “Key Part Judgment” as asupplementary approach. The confusion Principle requires “OverallObservation”, while the Innovation Principle requires the “Key PartJudgment”. However, these methods have the following drawbacks:narrowing the innovation space of products, part changes which lead toescaping infringements, confusing the scope of protection, lack of international protection to some appearances of products.And the sixth chapter gives some recommendations to these problemsabove. It is not sensible to abolish the Comprehensive Principle or just takethe Innovation Principle. It is necessary to adhere to the ComprehensivePrinciple and adopt some necessary part judgments. When determining themain part of judgment, it should heighten the standard of average consumerand classify the consumers’ ability based on different consumption areas.When coming to the premise of judgment, it should make the productcategory virtualized based on the same or similar product category. Whencoming to the methods of judgment, it should be under the premise of themethod of Comprehensive Judgment without changing the existing OverallObservation Principle, and refer to the design protection system necessary.