The Study Of Scope Of Protection Of The Appearance Design Patent And Tort Judgment

With the rapid development of China’s economic level and the continuous improvement of people’s material life, the satisfaction on material is no longer the main consideration in people’s daily life, while the spiritual meet is what they are really seeking for. As a new design full of aesthetic feeling, the design patent embodies much more of the people’s spiritual pursuit. It is the inevitable product of the market economy, which can greatly improve the competitiveness of the enterprise products as well as bring more income to the enterprise, so the design patent should be paid more and more attention by the people form all over the world. The third change of the patent law emphasizes on perfecting the protection system of the appearance design patent, such as prompted the status of the brief explanation, introduced the existing design demurrer, and some other focuses which are controversial among the academic circles and universally applicable in judicial practice. The confirmations of the scope of protection of the appearance design and tort judgment are the important parts of the appearance design protection system, and also the last line of defense of the protection of the appearance design patent. This thesis attempts to combine the theory and practice of both the domestic and foreign scope of protection of the appearance design and tort judgment, and unite the own research of the two aspects, then puts forward a restricted view about how to reasonably determine the scope of protection of the appearance design and proceed the tort judgment perfectly.This thesis can be divided into five parts. In the first part, the protection system and the meaning of the protection of the appearance design patent are briefly introduced. It is hoped that a general understanding about the development of the appearance design protection system will be given. The significance of the establishment of the appearance design protection system is discussed in this part. What’s more, the necessity of protecting the appearance design patent is put forward, in order to draw out the determination of the scope of protection of the appearance design and tort judgment which as the important link of the appearance design protection system.For the second part, the confirmation of the scope of protection of the appearance design and tort judgment in USA, Japan and the United Kingdom are introduced. These countries are ranking in the developed countries in the field of appearance design; meanwhile the appearance design protection systems in these countries are relatively impeccable. It is expected that through the introduction of how to confirm the scope of protection of the appearance design and tort judgment in USA, Japan and the United Kingdom, we can learn from the advanced and mature parts.The scope of protection of the appearance design in our country is mainly discussed in the third part. First of all, the rules of the scope of protection of the appearance design in our country are introduced and the objects of the protection of the appearance design patent are illustrated. The next is how to confirm the scope of protection of the appearance design patent, which points out that functional design, pubic recognized design, and internal structure are not included in it. But these can not be ruled out blindly, we should analyze their situations, so as to rule them out reasonably. Moreover, the scope of protection of the appearance design patent which is related to color is analyzed, in the meantime the own thoughts are put forward. The confirmation of the scope of protection of the appearance design lays a good foundation for the tort judgment.In the fourth part, the tort judgment of the appearance design in China is mainly expounded, including the preconditions of pursuing tort judgment, the rules and methods of tort judgment, as well as the tort judgment at the cross of the t appearance design patent and trademark privileges. Among them, the judgment subject of the standards of the tort judgment has been the bone of contention in the academic circles. Some standpoints on the demarcation of tort judgment confuses the standard judgment subjects are drew out in this part.The perfection of the Chinese the appearance design protection system is talked about in the fifth part. The necessity of adding brief description and the existing design demurrer; after all, they are the principles of the rules. Some thoughts and the directions of legislation about the applicability of the brief description and the existing design demurrer along with the perfections of scope of protection of the appearance design patent and the tort judgment are put forward.