Research On The Standards Of The Judgment Upon Exterior Design Patent Infringement

In recent years, with the increase of economy and living standard in our country, there's a rising demand as to life quality from residents. In the meanwhile, more and more design products with regards to aesthetic feeling and creativity appear on the market, which not only satisfy people's needs for better products, but also bring profit to enterprises by increasing the attached value. However, there is an increasing number of infringement cases of design patent, which is closely related to the imperfection of the relevant patent legislation and the unreasonableness of the authorized examination and the standards on the judgment of patent infringement in practice.The Chinese Patent Law revised for the third time, which based on the progress of creative ability, science and technology and the overall development of economy and society of our country, came into force on Oct. 1st, 2009. It intends to solve the problems in the practice of the patent system. Experts at home and abroad also offered a great deal of valuable advice. But as the Patent Law only makes requirements on some principle norm, the specific standards still need to be set up in practice. With the revision of the Patent Law, the Rules for the Implementation of the Patent Law and Patent Examination Guidelines also made corresponding revisions and the Supreme Court released the related judicial interpretations on Dec, 21st, 2009, which provide basis for the judgment of design patent infringement. But it's a pity that the revisions only limit to the authorization conditions and procedures of design patent. As for the specific standards of the judgment of patent infringement, there is no big difference with those of the judicial practice in the past in essence.Design patent is different from trade mark, invention and utility model, and therefore, the standard of the judgment of the infringement should also be different. After the implementation of the new law, there are many disputes in the academic circles and practice field. This paper, based on the related theories and the legislation and practical experience abroad, will give an overall analysis about the present theory of the judgment of design patent infringement in our country and the problems existing in the judgment of patent infringement and offer suggestions on perfecting the standards of the judgment of design patent infringement. This paper is divided into five parts:In the first part, the author mainly illustrates the theory foundations of the judgment of design patent infringement and put forward the author's views about some of them. The following five aspects will be mentioned: the foothold of the protection of design patent in our country; the relationship between the design and other intellectual properties; the determination of the scope of the design patent protection; the theory of balancing of interests in the Patent Law; the specific provisions and the theoretical differences of the authorization standard of design patent.In the second part, the author introduces the legislation and the judicial practices of other countries and places, including the USA, Britain, Germany, Japan and Taiwan. The main focus will be the three standards of the judgment of patent infringement established through jurisprudence in the USA.In the third part, the author, first of all, gives an in-depth analysis, including legislation analysis, theoretical analysis and practice analysis, on the confusion standard, the innovation standard and the innovation-included standard existing in our country, in terms of the perspective of judgment, the way of judgment, the type of products, the similarity of the design respectively. Then, the author analyses the advantages and disadvantages of the three standards in detail.In the fourth part, the author further discusses the problems concerning the judgment of the design patent infringement, showing clearly the necessity of strengthening the protection of the outward design. The author points out that, in essence, the standard of the judgment of the infringement of design patent in the USA is the same as the confusion standard in our country and the non-obviousness of design patent should be listed alone. The author also indicates that the standard of the judgment of the infringement should not be changed with the authorization standard and the brief description should be given most considerations in the judgment of design patent infringement.In the fifth part, the author explains the reasons of choosing innovation-included standard as the standard of the judgment of patent infringement and puts forward a programme to perfect the standard of the judgment of patent infringement.