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Research On Industrial Design Protection

Posted on:2007-10-29Degree:MasterType:Thesis
Country:ChinaCandidate:C YingFull Text:PDF
GTID:2166360182490161Subject:Law
Abstract/Summary:PDF Full Text Request
This paper takes legal protection of industrial design as main research topic, and by using comparative, descriptive and positive analyzing methods it discusses basic implication, characteristics and the determination and boundary of protection extent of industrial design patent. It also includes legal protection pattern of industrial design in our country and its insufficiency, and as well carries on how to improve protection institution of industrial design and so on.As the three protection object of patent law, industrial designs, inventions and utility models have shared the common features - creativity and originality, which was also the important reason that the legislator initially places these three into the same law to protect. However, compared with the other two patents, industrial design has its unique property which means it depends on technical nature and the usable artistry and aesthetic of the product. Just because of its unique characteristics, industrial design is distinguished from invention and utility model in many respects such as obtaining patent and protection agaist infringement. At the same time, industrial design also may obtain protections from copyright law under the certain condition, and when it has notability and distinguishable property, it may even be protected by the trademark law and as well as Law of Anti-Unfair Competition. Therefore, measures adopted by different countries differ much when it comes to protections for industrial design. Some countries use patent law for protection, some use copyright law while some others use both patent law and copyright law for protection. Besides, in view of the particularity of industrial design protection, some countries drew up the special industrial copyright protection method for protection.In our country, design has been protected by patent law since 1985. Although its effect is obvious, there still exist many problems, for example, because in patent law industrial design is examined by the non-substantive examination system, it leads to low quality of industrial design in spite of large quantity of applying for patent each year. Considering the problems in legislation and practice, this article explores legal protection of industrial design from the following four sections:In the first part: through the analyzing implication, characteristics and other properties of industrial design, this part has revealed similarities and differences among industrial design, invention and utility model, and on this basis had concluded that industrial design must be characteristic of attachment, appearance, industrial and aesthetic sense. Through comparing status quo of industrial design in domestic and foreign country, it elaborated significance and the function of establishing design law system. And it holds that industrial design has the special important function in our country and surrounding strategy of industrial design can be used reasonably especially when establishing and consummating law system of industrial design in our country, in order to descreasing competitive advantage of developed countries in technical aspect to maximum extent.The second part: by comparative analysis of legislation modes for industrial design protection adopted by several developed countries, design protection mode in our country and shortages was explored. Our country's legislation pattern carries on protection for industrial design primarily by patent law. However, on the one hand, current patent law uses the non-substantive examination to examine industrial design, which results in present situation of the high application, high authorization and low quality. And on the other hand protection does not do it best for active patent law often conflict with copyright law, trademark law and Law on Anti-Unfair Competion Law in certain protection scope of industrial design in terms of legal protection mechanism.The third part: This part mainly analyzes and discusses issues related to protection scope of industrial design patent. It discussed basic rules for determining protection range of design patent, the relationship among the three essential factors constituting design patent, the influence caused by respective category design patent product falls into on determining its protection scope , and related theories and realistic issues on extent of protection of industrial design patent and so on.In the fourth section: in view of extant problems and the insufficiency in our country, the author propose suggestions on how to consummate legal protection system of industrial design patent. As far as legal protection pattern of industrial design concerned, the author suggested adopting the pattern of independent legislation, only by which could industrial design patent be protected effectively.
Keywords/Search Tags:industrial design, the scope of protection, substantive examination, independent legislation
PDF Full Text Request
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