Design Authorized Standard Legal Issues Discussed

The amount of design patent increases year after year in China, which makes China abig country in the world in that regard. Being compared with those of the developedcountries, however, the overall designs of China stands at a low level, and mainlyconcentrates in the fields of packaging, toy and profiled bar. Designs which areself-created and representative could be numbered. Legislation regarding designscommenced from the start of implementation of patent law i.e. 1984, in consideration ofthe situation of the country of the time, the standard for granting patent right for design isrelatively low resultingly. Whether or not a general consumer is likely to confuse, hasalways been used to judge the similarity of designs, which is an intellectual production. Tosome extent, this practice aids copy, counterfeit and 'free ride', makes obstacle for theencouragement of self-creativity and further improvement of China's industrial design. Inaddition, against the background of present legislation, principles of judgment ofidenticalness and similarity of design are too general, uneasy to apply and discretionary,all of which lead to the inconsistency in the examination practice, this inconsistency inlaw's execution in turn, negatively influences the protection of designs and improvementof design quality.Whereas there exist legislative and judicial problems deadly waiting to be solved inpresent examination practice, by researching and analysing developed countries' andregions' design protection practice, integrating with the author's examination experience,adopting comparative method, this article tries to work out the granting standard fordesign patent which is in agreement with China's current social conditions anddevelopment request, and the scheme for advance in law's execution especially ininvalidation procedure in respect of design patent examination within present legalstructure.This article suggests to introduce proper granting standard lower than developedcountries with regard to inventiveness, exclude designs copying natural objects andfamous design, direct transfer from other technical field without creative work and simplegrouping-together from the protection of patent law. It also proposes to duly looselimitations defined by product classification, enhancing our country's right-granting andinfringement-determination standards. The judgment of identicalness and similiarityshould be based on the subject of a general consumer, and objectively analysed accordingto drawings or photographs submitted by the applicant. In particular, as to parts invlovingspecial design, even they are invisible in use, their impact upon the whole visual effectmay not be precluded. In judging the smiliarity of components, division shall not be madebetween visible and invisible parts.