Research On The Exclusion Of Functional Features In The Recognition Of Design Infringement

The exclusion of functional features in the identification of design infringement refers to the exclusion of functional features from the scope of design patent protection,which is the basic rule of design patent.Due to the functional features of product design and product itself is difficult to separate the attributes,making the use of functional features in judicial practice,the majority of both functional and decorative products in reality how to implement patent protection,which involves how to identify the functional features,has become a difficult problem in judicial practice.The exterior design patent aims at protecting the aesthetic innovative design stipulated in Article 23 of the Patent Law,which contains the intellectual labor of the designer and largely reflects the difficulties in the creation of the exterior design and the investment of the main cost.At the same time,the added value of products increases with the visual effect brought by innovative design,and brings economic benefits to enterprises.If functional features are not excluded in the identification of design infringement,it is not conducive to encouraging designers and enterprises to invest in innovation.In addition,functional features have been protected by invention and utility model patents,and design should no longer be regarded as the object of rights in order to avoid cross-protection within the patent law.The exclusive rules of functional features used in judicial practice in China are mainly the principle of functional sole limitation and the principle of overall visual effect judgment,which are reasonable to some extent,but also have some problems.For example,the focus of the principle of function only limitation is whether the design is the only,irreplaceable and no other design for realizing a certain function,which limits the scope of protection of design patent;The key point of the judgment principle of the overall visual effect is that even if there is an alternative design to achieve the same function,it is still necessary to consider whether there are aesthetic factors in the design features and whether they have a significant impact on the overall visual effect.However,there are some problems in practice,such as the fuzzy judgment rules of alternative design and the lack of unified judgment criteria for aesthetic factors;When judges make judgments on functional characteristics,their thinking and steps of judgment are not standardized,which leads to different judges making different functional characteristics of the same case in practice;At the same time the judge in the application of functional theory to exclude the scope of protection of non-functional standards defined vague,easy to decorative and non-functional confusion that the two are either-or relationship,proneto arbitrary that;In addition,the main body of judgment involves what perspective and cognitive level the judge will use to make judgment,but the cognitive level of ordinary consumers stipulated in our legislation has reached the level of ordinary designers,and does not conform to the main standard of judgment needed in actual judgment in judicial practice.In order to solve the problem of fuzzy judgment rules of alternative design,it is necessary to clarify the specific factors that affect the judgment of alternative design.By comparing decoration design with pure art and modern design,the meaning of aesthetic factors is clearly defined as a visual design that starts from the exterior of ornaments,pays attention to the external form of aesthetic feeling,has vivid and colorful shapes,has overall aesthetic feeling and can produce aesthetic association and has certain practical functions.When judges judge the functional characteristics,they should first determine the scope of protection of design patent rights,and clarify the comparison objects and design characteristics;Secondly,from the perspective of function and alternative design to exclude functional features;Finally,the protected design features are compared comprehensively from the perspective of different design features.Through the improvement of functional features,clear design features trichotomy and a clear relationship between non-functional and decorative to define the scope of non-functional standards.Because the identification of functional features and alternative design in functional feature exclusion has certain professionalism,the judgment subject is ordinary designer,which is more in line with the actual situation,and it is suggested that ordinary designer should be added to the judgment subject standard of functional features and alternative design.