Definition Of Judgment Subject In Design Patent System

The rapid development of science and technology brings comfortable and convenient to people’s life. With the improvement of life quality, people’s aesthetic demand is increasing, they pay attention to appearance design as same as the technical effect of the product. The design of product occupies an important position in the market competition, and it reflects thought of innovation of the designer, so it must be protected to ensure a good market order and to achieve the purpose of encouraging innovation. In China the protection of product exterior design is regulated in the “patent law”.Although the “patent law” has made three revisions, many existed problems in design patent system has continuous improved, the essential granting standard of design has gradually enhanced, because of the law always lags behind the development of society, there are some dispute problems in design patent system in our country waiting to be solved. Neither “Patent Law” nor “Implementing Regulations of the Patent Law” has any clear provisions about granting standard and judgment subject of infringement determination of design patent. In practice, according to the regulations in “the Guidelines for Patent Examination” formulated by the State Intellectual Property Office and in Judicial interpretation issued by the Supreme People’s Court, the judgment subject is “average consumer”. Because there is no uniform standard of the specific content about the average consumer, the judgment by every court is inconsistent.In this article, the problem how to define the connotation of judgment subject in design patent system reflected from the case is introduced. Author analyzes the differences between the design patent and other patents and trademark exclusive rights, determines how to define the content of the judgment subject in granting standards and infringement standard in design patent system. Then makes a comparison with relevant provisions of extraterritorial and summarizes the enlightenment, finally analyzes the case, put forward own solution and makes a summary.The text is divided into five parts. The first part is the case introduction and issues summarized from the case;The second part discusses the protection mode of design patent, analyzes the differences respectively between the design patent and other two kinds patent, trademark rights, especially differences in definition of the judgment subject, so the design patent system should not be confused with other systems.The third part specifically analysis the definition of judgment subject in design patent protection system. While the judgment subject of design granting standard is “ordinary designer in the authorized field”, the judgment subject of design patent infringement determination is “average consumer”, and makes a specific definition of their connotation, and analysis different requirements on capacity of “average consumer” in different situations.The fourth part studies the relevant provisions about judgment subject in design protection system in America and EU, provides the beneficial reference to the perfection of related system in our country.The last part uses above conclusions to asses the case and to solve the problems reflected from the case, then makes a summary and puts forward relevant suggestions on judgment subjects in the design patent system.