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Investigation Into Patent Protection For Partial Design

Posted on:2020-10-23Degree:MasterType:Thesis
Country:ChinaCandidate:Y L LiuFull Text:PDF
GTID:2416330647453928Subject:Law
Abstract/Summary:PDF Full Text Request
The so-called "partial design" system refers to the partial design innovation of the protection product.Whether it is the right grant or the infringement judgment stage,the administrative organ and the court analyze the "part" of the application submitted by the right holder,and then give the right to grant rights.Or constitute a judgment of infringement.Now,part of the design of the product has become the trend of product design in the world.Especially in the automobile and mobile phone industry,this has long been commonplace.Part of the product design is also an innovation and should be protected by law.In the design protection system of the United States,Japan,South Korea and other countries,some design protection systems are in place.The protection of some designs in the United States began as early as 1842,and some designs are not limited to a specific product to which they are attached,but may cover multiple embodiments.Japan has been protecting some designs since 1988,and has added regulations on image design in the 2006 Japanese Design Law to protect the graphical user interface.South Korea has protected some designs since July 1,2001.The scope of protection includes the shape,pattern,color or combination of products.However,at this stage,China’s Patent Law and its related laws and regulations only protect the overall design used by industrial products,and do not provide protection for some designs.When the right holder of the design focuses on part of the innovation and applies for protection,the creative part is usually combined with other customary designs in the field to submit a similar design application to protect the part of the design.Part of the design system has been incorporated into the legislation of many countries.In order to be in line with international standards,many researchers in China have called for the introduction of partial design patent systems in the Patent Law to encourage innovation.In response to the call of researchers and the needs of economic development,some of the design systems were included in the 2015 Draft Patent Law(Draft for Review)(hereinafter referred to as the “Draft”).At present,the "Draft" is undergoing a review process.Once it is foreseen,it will bring great changes to China’s related industries.This article will combine the legislative practice of partial design protection in other countries or regions,and in combination with the actual situation in China,provide relevant suggestions for the protection measures required for the formal inclusion of legislation in the design of some design infringement infringement standards,mainly including some designs.The determination of the scope of protection,the subject of infringement judgment,and the standard of infringement judgment.The full text is divided into three parts: introduction,body and conclusion.The body part is divided into four chapters.The contents are as follows:The first chapter first explains what part of the design is,and briefly introduces some of the design protection systems in some countries outside the country.Secondly,it analyzes the lack of realization of some design protection systems in China,the related problems,and the necessity of system introduction.In the current industrial product development in China,the overall shape of some specific products can not be changed greatly,only through the parts of the products.Innovation and improvement can lead to product updates.Although there are corresponding similar design protection rules in judicial practice,this rule is not a substitute for part of the design system and cannot meet the original intention of the design of the protection part of the inventor.Under this background,the draft revision of the Patent Law in 2015(send Partial design system was included in the review draft(hereinafter referred to as the “Draft”).At present,the "Draft" is undergoing a review process.Once it is foreseen,it will bring great changes to China’s related industries.After the official design of the patent protection system for some designs,if there is no supporting standard for patent infringement of design patents,it will not be conducive to promoting the development of the design industry by continuing to use the fuzzy judgment attitude of the previous design patent infringement in judicial practice.Innovation has greatly reduced the patent protection system for some designs.The second chapter attempts to analyze the legal infringement cases of some design patents in the United States and Japan,clarify the legal and factual issues involved in the patent infringement lawsuits of the United States and Japan,and the use of legal and factual issues.The detection and basic viewpoints attempt to sort out the infringement judgment rules applicable to patent infringement lawsuits in some designs after the formal implementation of some design protection systems in China through foreign case experiences.The third chapter mainly proposes ideas and suggestions for the relevant infringement judgment rules after the official landing of the patent protection system in China.First of all,in the determination of the scope of protection of some designs,when part of the design system officially establishes the status of the law,China’s patent examination practice should be inclined to determine the scope of protection of some designs in the US patent examination practice,that is,the use of virtual reality A combination of ways.In respect of the subject of infringement of some designs,in addition to the "general consumer" subject standard stipulated in the current "Guide to Patent Examination",the "general observer" standard established by the United States in the Gorham case may be used to determine the design infringement.The subject is summarized as a person who has a daily aesthetic and has a certain ability to distinguish such products,including the general purchaser of the product,potential purchasers,and those interested in the product.Finally,in terms of the infringement judgment standard,the judgment standard of the infringement can be summarized as the decorative innovation content that the alleged infringing design can be seen by the general consumers of the product in the common sense state.In short,as long as the responded product contains part of the decorative innovation content,the part of the decorative content is the decorative content that the general consumer of the specific product category can see in the daily cognitive level and aesthetic state,that is,Forming an approximation constitutes an infringement;otherwise,it does not constitute the same or an approximation and thus does not constitute an infringement.
Keywords/Search Tags:Partial design, Same or similar judgment of design, Scope of protection, Encourage innovation
PDF Full Text Request
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