Investigation Into Patent Protection For Partial Design

Partial Design, also known as Portion of Design, refers to the innovation design of part of the product which cannot be partitioned or sold and used independently.Partial Design originated in America. In 1976, America stated that the patentable subject matter for design is not the product itself, but the design of the product in the case of Mr.Zahn, so the design of part of the product can be protected. Since then,many other countries have introduced Patent Protection System for Partial Design. It was the first time for China’s “ patent law” amendment draft rules that the design of part of the product can be protected, trying to introduce the Patent Protection System for Partial Design, which has cased a lot of dispute about whether to introduce the system. This paper will combine the legislative practice about the Patent Protection System for Partial Design in other countries or regions with the actual situation of our country to clarify the dispute and the necessity of introducing the system. In addition, this paper will compare the difference and similarities of Patent Protection System for Partial Design in different countries or regions, and put forward some suggestions on the building of Patent Protection System for Partial Design, mainly including authorization conditions, the extent of protection of the patent right for partial design and right of priority.This paper is divided into three parts: Introduction, Text and Conclusion. The text is divided into three chapters, as following:Chapter I mainly discuss the lack of Patent Protection System for Partial Design in China, the reasons and the problems brought by it. First, this paper will analyze the legislation of the system in other countries to highlight the lack in China. Then, this article will analyze the reasons for the lack of the system in China. In China, thepatent protection system for design is positioned to prevent product confusion, which is the main reason for China’s lack of the system. Besides, to prevent the expansion of the extent of protection of the patent right for partial design and right conflicts are the other reasons. Finally, this paper will point out that the lack of Patent Protection System for Partial Design had brought in many problems for our country, including claiming right of priority, invalidation procedure and infringement.Chapter II mainly discuss the necessity and feasibility of introducing the Patent Protection System for Partial Design in China. First, This paper will discuss the necessity for introducing the system in our country from encouraging innovation in design, clarifying the extent of protection of the patent right for design and catching up with the international protection system for design. Then, this article will discuss the feasibility for introducing the Patent Protection System for Partial Design in China from the practical basis and legal space.Chapter III mainly discuss the construction of the Patent Protection System for Partial Design in China. First, about the authorization conditions, the paper suggests that the Patent Protection System for Partial Design should just take the part of the product wanted to be protected into consideration in the judgment of novelty and inventive step, and should not limit the prior design to the identical or similar product.In addition, the Patent Protection System for Partial Design should regulate that the judge should the person skilled in the design because of the high degree of innovation in the partial design. Secondly, this paper suggests that the extent of protection of the patent right for the partial design should be determined from the name, the drawings and so on. Finally, the theme of the right of priority are the same, if the drawings of the prior design have contained the theme of the latter design wanted to protected, and it does not matter the prior design is overall design or partial design.