Research On Partial Design Patent Authorization And Infringement Judgment

On October 17,2020,the Standing Committee of the 13 th National People’s Congress passed the "Decision of the Standing Committee of the National People’s Congress on Amending the Patent Law of the People’s Republic of China",establishing a partial design patent system.Since this patent protection system needs to be connected with my country’s current design patent system,it cannot be completely copied through legal transplantation.This requires research and review of the specific rules of the partial design patent system.This article introduces the process of introducing partial designs in our country,and analyzes the influence of the existing "partial element" judgment method and "overall observation and comprehensive judgment" method on the protection of partial designs through representative cases.Take Japan,the United States and other countries as examples to summarize and sort out the partial design patent systems of these countries.Although the specific rules for patent authorization and infringement judgments are different in each country,each has its own characteristics.On this basis,this article puts forward a specific system conception for the protection of partial design patents in my country.The conclusion is that the requirements for application documents should be regulated in accordance with the characteristics of the partial design in the patent authorization examination.The patent name should adopt the naming method of "product name + partial design on the part of the product",and the submitted views should be drawn in the internationally accepted "solid line + dashed line" method,and the solid line part should be used as the entry point for the explanation in the brief description.The ambiguity of the dotted line should be explained.In terms of judging subjects,the judging subject of novelty can follow the legal fiction of the "general consumer",but its ability needs to be improved.For creative judging subjects,designers in this field should be adopted.In determining the scope of protection,considering that the partial design should be naturally connected with the design of other parts of the product in order to be integrated into the overall design and meet the unique beauty of similar products,factors such as the overall location of the partial design and the product category should limit the scope of protection.In terms of infringement judgment,the standard of the subject of infringement judgment can follow the legal fictitious person of "general consumer".At the cognitive level,not only the common design of partial design in the creative space of the overall product must be considered.,but also consider the common design techniques brought about by factors such as the creative freedom of the partial design itself,the natural connection between the partial design and the design of other parts.For judgments of the same or similar partial design patents,the method of "partial comparison + comprehensive judgment" can be used for comparison.