Research On Design Patent Infringement Determination

Design patents are designed to balance the interests of the right holder and the third party.In the determination of infringement,the right holder should not be biased to create a monopoly of rights,and the third party should not be excessively protected to dampen the enthusiasm for innovation.Design legislation originated in the United Kingdom in the 18 th century.Compared with the century-old development history of the West,although my country’s Patent Law,which was established in 1984,has been continuously revised and improved,there are still many disputes in the determination of design infringement,such as the right to The determination of the scope of protection,the subject of infringement judgment,and the determination of infringement standards make the research on this issue still of practical value.First,clarify the theoretical issues that affect the determination of design patent infringement,including the concept,nature,authorization conditions and protection period of design,and focus on eliciting the core elements of design patent infringement determination.Four representative cases selected from judicial practice show that there are disputes in the three levels of patent protection scope,determination subject and determination criteria in the determination of design patent infringement,which leads to unfair judgments from time to time.Second,the scope of protection of design patents,combined with the judicial practice and legal provisions of Britain,then introduces our country’s current determination of the scope of rights protection,and then proposes a “three-step method” to determine the product objectively and fairly category,adhere to the existing principles to determine the scope of protection of partial designs.Third,the subject of design infringement judgment,by comparing the “ordinary observer” in the United States and the subject of “informed user” in the EU,it is found that the current mainstream views in my country tend to confuse the subject of authorization and the subject of infringement judgment,and the concept of “general consumer” is relatively blurry.It is suggested to raise the threshold for authorization of industrial designs,adopt a combination of formal examination and substantive examination,and determine the specific connotation of “general consumers”according to different product types.Fourth,the standards for judging design infringement,whether the “two-point test” in the United States or the “revision and creation theory” in Japan,are the results of continuous improvement through practice and development.However,my country’s blind adherence to the “confusion standard” has deviated from the purpose of the Patent Law,and the protection of innovation points is obviously insufficient.In this regard,it is suggested that on the basis of the overall observation method of the“confusion standard”,the “innovation standard” should be adopted to increase the protection of unique innovation points.