On The Patent Protect System Of Partial Design

On April 1, 2015, the state intellectual property office promulgated “The Patent Law Modification Draft” and intended to protect the partial design in Article 2. Although the voice for partial design never stop in recent years, as to the United States, Japan, the European Union protecting the partial design for many years, it seems strange for China. The legislature of every change in the law has certain realistic demand and goals. According to the instruction of the draft, the purpose of protecting the partial design is that: On the one hand, to meet the demand of innovation and economic development. On the other hand, in catering to the international trend of the design. For the regulation has never been in our country, legal transplant is usually adopted. Every country`s law has its own characteristic, we should not fully absorb without consideration. Especially, there are many kinds of way to protect the design, such as patent art, design art and copyright art. So the exact way to establish the system is compare with each country`s law and consider our national conditions.The first part of this article discusses the dilemma of overall protection. Both examination stage and infringement determination needs to solve a core problem, namely how to compare two designs. The difference between them is that, we care more about the distinction between two design in the examination stage, but the resemblance in the infringement determination. From the historical evolution of law, regulations and administrative rules, we can find that the overall alignment method has been always throughout the progress of comparison. Although the Guidelines For Patent Examination 2001 ever raised the vital part alignment method, it means the vital part in visual sense but not in innovation. The corporations need the partial design protect system, because partial innovation is normal in the manufacture.The second part discusses in two aspects of legislation and the judiciary, trying to illustrate design protection from the partial to the overall trend of expansion. From the judicial interpretation by Supreme Court, we can find that the perspective of the judge from the overall protection gradually shift to focus on design features.The third part introduces the partial design system in the United States. It can be found what the United States design system protects is the design but not the article for manufacture. But it also means that the boundaries between the objects are blurred.The fourth part discusses the feature of the object protected by design system. Then raises one question that why the partial protection only regulated in the design system but not the copyright system and trademark system. Through the understanding of the design object, this article holds that the characteristics of itself is the root of unknown boundaries and overlapping protection. If unable to clarify its boundaries, maybe left the option to the party is the right way.The fifth part discusses what the partial design system in examination stage and infringement determination will build in China.The last part is divided into conclusion in this article. It raised that the value of law not only emphasis on innovation, also need to give attention to both the value of efficiency. Legislation should take the market and industry demand as the guidance.