Research On Problems Of The Infringement Determination Upon Exterior Design Patent

The protection of exterior design is different from the protection of invention or new type applied product. Confirmation of the protection scope for exterior design patent right and infringement determination are relatively independent. By means of learning, understanding and cognition of exterior design patent protection theory in and abroad, combining with the present practice of exterior design patent protection in China, this paper is mainly on discussion of how to define the protection scope for exterior design patent right and determine the infringement more scientifically and reasonably, and in the end, according to the analysis of problems in practice, puts forward my own advices to improve the criteria for infringement determination upon exterior design patent.This paper includes preface, text and epilogue. The text is divided into four chapters.The first chapter simply introduces the definition of exterior design and legal characteristics of infringement act of exterior design patent right. It analyses the features of exterior design at the basis of comparing different nations' definition. And by comparing the differences between exterior design and invention or new type applied product, it furtherly analyses the effect on infringement determination which the differences make.The second chapter analyses how to confirm the protection scope for exterior design patent right in detail. At first, it proposes that the category of the protected product is the precondition of confirming the protection scope for exterior design patent right accurately. As exterior design is the creative design of the shape, pattern, color or their combination of a product, the point of creativity should be confirmed accurately. In the end, it analyses the content which should be eliminated in the protection extent for exterior design patent right.The third chapter mainly tells how to determine the infringement upon exterior design patent. It considers that the court should take the common consumers' sight view to determine the infringement and it enumerates the methods of how to determine the infringement. At last, it explains how to determine whether the designs are the same or the same alike.The fourth chapter mainly discusses the improvement of the criteria for infringement determination upon exterior design patent. It deeply analyses the problems existing in judicial practice, and it considers that the reasonable criteria for infringement determination is beneficial to promote innovation. And at the basis of learning from overseas legislation and judicial practice, it puts forward the advices to improve the criteria for infringement determination.