| Partial design refers to the innovative design of a part of a product,such as the cap of a wine bottle or the brim of a hat.The United States,Japan,South Korea,the European Union and other countries and regions have implemented this partial design protection system.The 2008 "Patent Law" and its implementation rules only provide protection for the overall design of a product,which doesn't include separate protection for the Partial design.The introduction of the partial design system has caused considerable controversy.Even though it has been mentioned many times during the revision of the patent law,the introduction has not been passed yet.According to the "Decision of the State Intellectual Property Office on Amending the Patent Examination Guidelines"(No.68),from May 1,2014,graphical user interfaces can be protected in China through design patent.However,the partial design protection system,which is the basis of the graphical user interface protection,has not been established in China.The concept of partial design was introduced in the fourth revision of the Patent Law in 2015.In the bill passed in 2020,the expression "whole or partial" was added to the definition of design in Article 2 of the Patent Law,indicating that China has included partial designs in the scope of protection of the patent law.This article believes that although the protection of partial designs is recognized in legislation,the current partial design system in our country is still in a state of "formally in place and substantively absent".Therefore,this article uses comparative research methods,inductive deductive methods and historical analysis methods,combined with the law of industrial development and intellectual property theory to put forward specific suggestions to improve the partial design review authorization and infringement judgment rules.In addition to the introduction and conclusion,the full text of this article includes four chapters.Chapter One " Analysis of the Current Situation and Dilemma of the Protection of Partial Design in China ".The fourth revision of the Patent Law increased the protection of partial designs,but there are no specific guidelines for specific examination authorization rules and infringement judgment rules.Therefore,in way,China's partial design system is in a state of "formally in place but substantively absent".The reason for the state of " substantively absent " is that the understanding of "product as a carrier" is biased,and the understanding of the product overemphasizes its complete product nature.It is believed that if protection is provided for partial designs,the carrier cannot exist independently and cannot be suitable for industrial applications.Second,because of the reliance on the “overall observation and comprehensive judgment” standard,the overall judgment is emphasized in the review authorization and infringement judgment,while partial innovation is ignored,and the overall feeling is tended to be grasped,but the details are often downplayed and the partial is discarded.The third is that it is dominated by the "confusion theory",and the comparison between the patented design scheme and the existing design can only fall on the overall product,consumers do not have the sharpness of professional designers in observing products.Especially under the condition of isolation and comparison,one can only retain a general impression of the product as a whole,and the subtle partial design is largely ignored.Fourth,it is affected by the protectionism of the design industry in the region,It believes that once partial design protection is opened in China,advanced designs outside the territory will quickly seize the market before the growth of Chinese design industry.As a result,Chinese design industry has fallen into a passive situation.The state of " substantively absent " will obviously also cause undesirable consequences.From an industrial point of view,it violates the design and business philosophy.It reduces the independent function of the design,which is not conducive to the flexibility of the enterprise in the product development cycle.From the perspective of legal protection,if partial design is not protected,it will also cause the imbalance of domestic and foreign priority recognition.The most important thing is that in the state of " substantively absent",design-related laws and regulations will also cause a disconnection problem in the application of partial designs.Chapter Two "Analysis of Theoretical Basis of Partial Design".The concept of design has gone through a process of gradual independence and clarity,and presents a biased instruction with the development of society.The term design in modern society focuses on integrating with the industrial system and absorbing nutrition from the field of art,emphasizing the flexible use of new materials and technical methods,and the pursuit of higher visual effects.The design industry has gradually put forward a strong demand for legal protection.From the “design” in the life world to the “design” in the law,it has experienced at least two steps: the scope reduction and the deconstruction of the content.The choice of design empowerment paradigm has also undergone a long process of evolution.From the initial general protection of the creation of wisdom to the gradual clearing of the boundaries between various objects,the appearance design has gradually clarified its own definition and extension.After the concept of design is legalized,the understanding of partial design will have a foundation of connotation.A design can be understood as the upper concept of a partial design,which has a more general meaning,while a partial design adds a pre-scope limit to the design and belongs to its lower concept.The emergence of the partial design system is the product of the rise of the design boom.The material production conditions and the level of technological development in a specific era,the alternate influence of the economic foundation and the superstructure provide the impetus for the development of the partial design system.At the same time,subject to the constraints of the overall design space,the continuation of the design style,and technical support,partial innovation is also an inevitable trend.This chapter also discusses the connotation and justification basis of partial design.The first is its definition and classification.Two classifications can be made based on different classification standards.The first category focuses on the carrier of the design,and the second category focuses on the way the design itself is presented.Secondly,with regard to the object of partial design protection,the article points out that it is expression rather than thought,design rather than product.It also discusses the separation from the object of copyright and the difference from the object of patent.Thirdly,discussion among the scope of the rights of partial design.The "solid and dashed line combined" image drawing method highlights more clearly the protection scope of the design patent right drawn by the solid line part.Finally,regarding the form of protection of partial designs,this chapter discusses three ideas,including separate legislation on design and parallel with copyright law,separate legislation on patent law,and design law,expounding the advantages and disadvantages of various ideas.In addition,in the discussion on the basis of legitimacy,this chapter proposes that partial design,a new type of intellectual property object,is no longer an exclusive product of a certain doctrine,but should be a complex mixture of natural law,utilitarian factors,and other influential.bodies.Therefore,the legitimacy of partial design protection is explained from the perspective of added value theory,distributive justice theory and modified utilitarianism.Chapter Three "The Construction of Authorization Rules for Partial Designs".This chapter proposes that if a partial design wants to be authorized,it must firstly meet the aesthetic requirements,and it must have a certain aesthetic content that can make people feel visually pleasant.Secondly,it is the exclusion of legal functionality.Legal functionality does not refer to the basic physical function of the product.On the one hand,if the appearance of the product can complete a specific function and is necessary to complete the function,there is no alternative or a very limited number of other appearances,then the design has legal functionality.On the other hand,if the function of the designed product is not only the basic factual function,but also provides a competitive advantage,or if the design is not used,the manufacturing cost and difficulty will be significantly increased,then it can be said that the design has legal functionality.Thirdly,it needs to meet the requirements of novelty,that is,it does not belong to the existing design and does not conflict with the application.The subject of novelty judgment should be the general consumer,it should have a higher quality standard than the general consumer of the overall design product.That is to say,after meeting the basic conditions,they can also notice the slight changes in the shape,pattern and color of the product.The method of judging novelty should adopt the method of "partial observation and comprehensive judgment".While focusing on the part,it should also take into account the performance status,position and proportional relationship of the partial design in the overall product.Finally,the condition of non-obviousness needs to be met,that is,these substantially different designs are not obvious and can only be completed through creative work.The non-obvious judgment subject is different from the novelty judgment subject.It should be the designer,because the partial design is a part of the overall product,the sensory range is smaller,and the visual effect is weaker.It is very likely that those partial designs which have creative value and are not obvious have no significant difference from the perspective of ordinary consumers,so they cannot be authorized.Only the designer is better at seeing the true chapters in the smallest places and giving more wise judgments on the differentiation of partial designs.The judgment of non-obviousness should not overemphasize the restriction of product categories,but whether creative work has been paid to the absorption and use of these various design materials and impressions.The idea of determining the non-obviousness of a partial design can refer to the idea of judging the creativity of the technical solution.The first step is to determine the closest existing design(although there is no product category restriction for the selection of comparison designs as described above,the closer design has a higher reference value),the second step is to determine the design differences or distinguishing design features,the third step is to determine whether the transfer and combination of design features is obvious.Partial design applications also need to meet a series of formal requirements.The first is the name of the application.“The name of the overall product plus the name of the part of the design in the product” should be used as the name of the partial design patent.On the one hand,this naming method is compatible with the application form of the overall design;on the other hand,it can initially determine the important role of the scope of protection,and it is also convenient for retrieval and classification.The second is the drawing and expression of the view,the rational use of the dashed and solid line of expression or the method of fuzzy processing,so as to highlights the design parts that need to be protected,and clarify the point of the review.The third is the supplement of the brief description,which is mainly the interpretation of the design points,that is,the supplementary description of the design element innovation in the part.Fourth,refer to the introduction of the confidential design system of Japan and South Korea to handle the undisclosed design content of authorized partial designs,keep the product in a confidential state before the official sale,which can arouse consumers' curiosity about the products and promote consumer enthusiasm to achieve better marketing goals.In addition,when reviewing the authorization,we must pay attention to the particularity of the graphical user interface design.First,the graphical user interface design has more thorough dematerialization characteristics.Its rich scientific and technological content and strong technical support make it have a wide range of options for the carrier.Therefore,when considering the authorization rules of the graphical user interface,the connection relationship between it and the physical product should be more tolerant.Second,regarding dynamic graphical user interface design,dynamic images include design elements such as shapes,patterns,and colors,as well as text,lines,and sounds.Compared with the static interface in terms of combination form and visual effects,it is extremely inclusive and can be easily mixed and matched with various artistic styles.Because of its dynamic and static characteristics,there are also strategic differences when choosing design protection.Third,there is already a tendency for GUI protection rules to dilute or even depart from product influence.Under this trend,the GUI itself will become an independent "product",which is qualified for localization.Part of the elements or part of the dynamic changes and part of the image expression in the interface becomes a partial design of the overall GUI,and it is possible to obtain individual protection.Chapter four "Determination of Infringement of Partial Designs and Calculation of Damages".First,dividing the scope of infringement comparison of partial designs.To determine the scope,we need to start from two points.One is visual recognition,including pictures or photos,and the other is character recognition,which is usually literal expression in a brief description.The focus of infringement comparison is no longer the overall design,but the "part" that reflects the design creativity.Second,the determination of the judgment position of partial design infringement.Although both the innovative position and the confusion position have their own advantages,the more appropriate position for the judgment of infringement of partial designs is still the confusion position.Because the focus of various procedures and rules in the patent system are different,the strict innovation(non-obvious)requirement of the authorization procedure is to achieve better incentive effects,the infringement trial is to stop the market chaos caused by the confusion of design products.The partial design is originally the product of advanced innovation.If you insist on an innovative stand when judging infringement,you will be trapped in the quagmire of rigorous research on technology and will ignore the market effect of the designed product.Third,the detailed structure of the partial design infringement identification rules.Judging the subject as "general consumers",consumers obviously have more voice under the dominance of the confusion position,because consumers' misunderstanding of design products,mixed purchases and other behaviors are the fundamental reasons for the entanglement of market interests force.The "general consumer" proposed here should have more precise observation ability,or have special attention to partial design.A partial design is a design made for a part of a product,and it cannot be considered that it does not need a carrier as a medium because of its partial characteristics,or ignores its connection with the product.In the judgment of infringement,the same or similar products should also be used as the boundary.The article also proposes a specific method of judgment,namely "partial observation,comprehensive judgment".The "partial" refers to a specific part of the product,rather than all the design features of the visible part of the product,the "comprehensive" refers to the synthesis of all factors that can affect the visual effect of a partial design.In addition to the design features of the part itself,it also includes the appearance,size,location,,proportional relationship and distribution characteristics of the part in the overall product.Finally,when evaluating the substantial similarity of partial design impressions,it is necessary to consider the freedom of innovation,which includes the impact of functional factors,market conditions,and the degree of congestion of existing designs.This chapter also discusses specific issues in the determination of graphical user interface infringements.Mainly speaking,although the graphical user interface needs to be presented with the product as the carrier,its dependence on the product is lower than that of the ordinary partial design.Therefore,it can be given the qualification of exception to the product category limitation when judging the infringement.In the judgment of infringement of dynamic graphical user interface,it is necessary to focus on the key frame and the dynamic change process.Damage compensation for partial design infringement needs to adhere to the two basic principles of "complete compensation" and "prohibition of profit".On this basis,the design apportionment and patent grant rate are considered,and the amount of infringement damages is determined according to the proportion of the contribution of the partial design patent to the value of the product.When measuring the contribution ratio,it is necessary to consider the degree of innovation of the design,product type,recognition of consumers,market response,etc. |
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