Reconstruction Of Civil Procedure On Design Patent Litigation In China

The Patent Law amended in 2008 has improved the standards for approving design patents, but does not make many changes on relief process. In practice, design patent infringement litigation process is easy to be suspended because of the patent invalidation process, causing the lengthy proceedings and therefore the design patent is often used at malice in the practice. Compared with the process of design patent protection in the U.S, EU, and Japan, and based on Chinese judicial practice, this article provides some ideas about optimizing the litigation process of design patent. In the short term, we should take actions by using the judicial interpretation to optimize the process like explicit the use method of design evaluation report; take non-stop trial as the principle while suspended trial for the exception; raise the proportion of cash deposit to restrict the abuse of property preservation during the litigation. In the long term, the author suggests protecting design patent by independent legislation, establishing a patent court on the basis of the Patent Re-examination Board, authoring judges the power of determining the validity of the patent during the patent infringement litigation process. With these reforms, it is expected to be able to maximize the role of design patent system.