Study Design Creative Legal Issues

The history of civilization is mainly a history of design. However the term "design" is not a concept that ever exists, it appeared only after the separation of the two processes of creation-planning and manufacturing. This paper probes into the issue of inventiveness of design. Design patent protection in China started in 1985 and lasts more than 20 years, and now the number of design patents' applications and grants has already been first place in the world for several years. In spite of this, due to the short protection history and the lack of legislation experience, there are still several issues in need of improvement. This paper is divided into four chapters.The first chapter analyses the meaning and legal protection mode of design. The term "design", as a legal concept, is different from its general meaning in daily life, and the term "design" in Patent Law refers to any new design of a product's shape, pattern or a combination thereof, as well as the combination of the color and the shape or pattern of a product, which creates an aesthetic feeling and is fit for industrial application. Generally, designs can be protected by copyright law or patent law, and our country chose the latter one. This chapter discusses the similarities and differences of the two protection modes.Chapter II focuses on the legislation and legal practices on design' inventiveness in the United States, Britain and Germany, and gains lessons for our country' design system. All these countries have specific criteria and uniform application methods on the inventiveness of design. For example, the principle of non-obviousness in U.S. law, which is useful to improve the quality of the design patent, offers a valuable experience for our country.Chapter III discusses the relationship between the inventiveness standard and the aesthetic feeling standard, as well as the inventive expression of aesthetic feeling. The Inventiveness is the soul of all outcome created by human beings, and inventiveness have different requirements in different intellectual outputs. In the field of industrial design, inventiveness means that the design applying for patent, compared with existing designs, has a unique character. Inventiveness has a close relation with the aesthetic feeling, and the aesthetic feeling is expressed through inventiveness.Chapter IV analyses design's granting terms, protection scope and infringement judging standards in China's Patent Law. The paper proposes that a specific definition of design, the inventiveness standards and a uniform granting terms and infringement judging standards should be established and improved, and all these issues should be taken into consideration in the next amendment of Patent Law.