Research On Overlapping Of Design Patent And Copyright

The industrial design, which has the characteristic of both novelty and originality,can get patent law and copyright law dual protection under certain circumstances. Thedual protection will cause the problem of conflict of rights. As for as the legal issue ofan intellectual product protected by the different intellectual property rights, scholarsuse different terms. China’s academic circles called this phenomenon "conflict ofrights ","dual (multi) protection"," cross-protection "or" the rights of competing".Countries are try to draw a clear line between design patent law and copyright law,but the result is not satisfying. Whether to grant the same intellectual product with thedouble protection of copyright and design patent, and how to resolve the conflict withthem, there have been more and more problems which demand prompt solution in thedesign protection practice. This article use the case－whether the design patentshould be given to copyright protection－to introduce the topic. It stood the learnfrom foreign judicial and legislative practice, started with the basic theory of design,and pointed out the legitimacy and inevitability of dual protection by analyzing thecause of the conflict between copyright and design patent. In the last it propose theconstructive suggestions of solve overlapping of design patent and copyright to minimizethe negative impact of the design patent and copyright conflict. This structure of thispaper is divided into four chapters: ChapterⅠis brings forward the topic by empirical analysis on the typical caseconcerning conflict between design patent and copyright. It will point out the cause of thisissue is the complex character of design. On the ground of this, It give my standpoint about Choicetheory of intellectual property rights.Chapter Ⅱis about why we need the dual protection of design patent andcopyright to product design, and a analysis of the dual protection. They are severalreasons, including intellectual property characteristics，legislative system in China, thebalance of the interests.Chapter Ⅲis about how works of applied art be protected in judicial practiceboth in domestic and America. Section I is the empirical analysis on the typical casesconcerning works of applied art. In this section, several typical cases are selected andsorted out to classify the attitude of the courts on how works of applied art could bethe protected by copyright law. The opinion of court is that the works of applied artmust be meet the four requirements: practical applicability, artistic quality, originality,and reproducibility. Then I analyses the separate identity and independent existencetest. Works of applied art may be protected by both copyright and design patent. Butthe object of right is difference between copyright law and patent law protection. Thepractical function of industrial design does not protected either copyright law orpatent law.Chapter Ⅳis about the legislative suggestions of building and improving thedomestic industrial design patent right system. With the analysis and comments on ourdomestic legislative and judicial situation, this paper raises the correspondingsolutions for problems that respect the private right essence of industrial design right,pay more attention on the actual characteristic of industrial design and makelegislative provision of works of applied art in domestic copyright law.