Legal Protection Of Design Patents

The thesis is titled A Study on Legal Protection of Design Patent, studying some questions in legislating and practice of design patent protection. E.g. how to confirm the protection field of the design patent right while judging patent infringement; some principles of judging design patent infringement, and how to perfect legal protection system of design patent, etc. The background of the thesis is: In the protection objects of the intellectual property law, design is a special one. Design can be protected by patent law while it shows the feature of novelty as a patent; and by copyright law while it expresses aesthetics as a work; and also by trademark law while it had been used and get the feature of distinctiveness as a trademark, and even by law of anti-illicit competition as decoration. For such reason, different country has different way in design protection. Some countries protect it by patent law, some protect by copyright law, and some protect by both patent law and copyright law, some countries enact specialized design law according to the special feature of design. In our country, the patent law protects design at present. Design is different from invention and utility, in that the former protect the appearances of concrete products, and the latter, technical method. The articles about design are limited in the patent law of China, which makes some people regard the protection as a simple work, only comparing the accused products with the object in the picture or photograph. In fact it is more complicated than only comparing the accused products with the object in the picture or photograph. Now some questions exist in the legislation of design patent in our country, so that the design patent is unable to get enough protection, the conflict with other rights is unable to avoid. Meanwhile, though the patent law of our country modified two times, the level of design that the patent law protects is not high. Design patent being enormous, our country can be rated first in quantity, but far from first in quality. Research must be done to involve the above questions. It is to confirm the protection field of design patent, and to judge design patent infringement fairly, and to promote the standard of authorizing design patent, and to perfect the legal system of design protection. The thesis deals mainly legal protection of design in five sections: The first section, mainly introduce such questions as the concept, nature, characteristic of design and the right and obligation of the owner of design patent. From the definition of design in our country, the author summarizes the nature, characteristic of design, and then point out the future of ornamental characteristics, utility and novelty is required. And then author think creativity should be an essential term of design patent authorized, but the essential term that design can't conflict with others' former right is unnecessary; In addition, someone thinks it should add transfigure features to the essential terms, while author think transfigure features is an inherent demand for design, it needn't be regarded as the essential terms. The second section introduces and compares the legislative mode of design protection adopted by various countries, and the regulation by several main international treaties. Because the legislative modes are different in the world at present, the degree of protection is different too. Design patents are enormous in our country, and protected by the patent law. The protection level is high formally, but in fact is lower than most countries that intellectual property right protected well. It is imperative to study the legislative mode of design of our country, and strengthen the protection of design. The third section, mainly analyses the legal basis to confirm protection field of design patent, the range of products to be protected by design patent, the content to be protected by design patent, and the restriction to be protected. The author thinks, firstly to confirm the protection field ofdesign patent, we should define its le...