Research On The Systematization Of Design Law

The systematic study on the design is essential to the understanding and application of rules of law of the design. The concept and rules is the basis of the systematic analysis, and the core of understanding of the concept and rules lies in its value orientation. The nature of property law and intellectual creation of the design law has decided that its value orientation depends on, "encourage the appearance of more valuable design through the establishment of specific system, and ultimately achieve the optimal allocation of the total social cost invested from design and the total social benefit that generated from it." The rules of the legal system of design(such as novelty, creativity, registration system etc.) is the embodiment of the value orientation, the understanding of this value orientation is the key to solve the disputes in practice.The design should be deterministic, visual, functional and non functional, and can be copied. Among them, the certainty refers to the determination of the shape, rather than determination of the ideas or words; comparative determination rather than absolute determination; Determination in the state of application, but not in the state of use; determination of the individual components, rather than the determination of the final state of the combination. The visual requirement of the design is not the same as beauty, it contains the visibility in each phase from production to exploitation, and it does not completely excluded the observation instrument other than naked eyes. The design shall also have a practical function, but it is not that function but the design combined with that function enjoying the protection. The replicability of design underlines the interests of the industry, but not limited to machine copy, it also includes manual copy.According to the different classification standards, product with design can be divided into industrial products and handmade products, two-dimensional and three-dimensional products, assembled products and product components, product components and parts of products, traditional products and new types of products, the classification of design has its own significance in the rules of design. Product categories has no decisive significance to the scope of protection of the design, and its role is mainly reflected in the aspects of administrative management, understanding of design and the retrieval of prior design.Functional design refers to the design with technical function and legal function, but not aesthetic function and factual function. The rule of functional focus on the specific features of design, rather than the overall design of the product. If a design feature is the only choice or one of the very limited choices to realize the corresponding technical function, then this design feature shall not be taken into consideration when making the identification or determination of the novelty, creativity or infringement. The purpose of the system is to avoid the monopoly of the technical solutions by the right holders through the protection of design rights.The main purpose of the novelty system is to avoid the repeated authorization, to avoid the occupation of public domain and to maintain the consistency with the standard of infringement. The identification of novelty shall be based on the cognitive ability of the direct consumer of the design product, and judged by direct buyers on whether two designs belong to the same or similar types of design of the same or similar category of products. To determine whether the two products belong to similar category of products should take whether there is an alternative relationship between these two products as the standard. And to determine whether the two designs is essentially the same, you should adopt the principle of overall observation, and take the consideration of the weight of different elements including shape, pattern and color, and the factors of novelty, functional characteristics and design space, etc.. In the specific judgment process, you should determine the specific steps of the identification from the perspective of the inspector or the judge in accordance with the their thinking characteristics.The system of creativity aims to improve the requirement of the difficulty of the intellectual achievements of design, and thus more conducive to optimizing the allocation of the total social cost and total social revenue. The judgment of creativity should be based on general designer as the subjects of the judgment. Comparison of design is not limited to the design of product, but also include prior works, and the design of product is not limited to the same or similar kinds of product design. The comparison of creativity includes both a single match and combined match. The main factors considered in the single match comprise whether it has the enlightenment of the conversion of use, whether the change of product categories would result in the requirement of creative work in the combination of function and design characteristics, and whether the feature of distinguish is an innovation and so on. In the combination match, you can take the three step test used in patent creativity judgment for reference, and its key lies in the identification of the enlightenment of combination.The purpose of the system of tort rules is to implement, as much as possible, the incentives for the people and social public, and to achieve the balance of interests between the right holders and the public. The scope of design rights should be determined in consistent with the standards for novelty and creativity in the single match. The existing design defense is the most important reason for defense. When applying the defense, you should avoid to take the approximate degree level as the criteria for the judgment of whether the defense is established, and the judgment should be based on the existing design as the core, that is, as long as concerned design or one of the infringing products fall into the scope of the existing design, it should be identified as the established defense.