Research On Problems Of The Infringement Determination Upon Design Patent

The fourth time modification to Patent Law is in sight. It is a big step forward that the draft revision start to protect part of design patent and extend protection period to 15 years.moreover it is big move for people to give designs domestic priority.However, problems of design patent infringement determination still not mentioned,and there only some general requirement described in the relevant judicial interpretations. In this paper,I hope to solve this problems by comparing the infringement judge legislation and research status at home and abroad.Meanwhile, trial cases has been used.In the second chapter, I introduced the similarities and differences of infringement between design patents and the invention patents, utility model patents,commercial appearance, trademarks. Concluded that design patent should be different with the other two in the subject and standard of infringement.The third chapter points out that what specific disputes appeared in the process of the infringement determination, mainly include:(1) whether the scope of protection should breakthrough product category limitation and whether the same or similar category may not be in accordance with the "International Classification for Design";(2) the infringement judges should be "general consumers" or "ordinary designer", the content of "general consumer" is not clear;(3) the infringement judge standards is not specifically defined, and the "confusion standards" formed in judicial practice are conflict with the purpose of design protection.The fourth, fifth, sixth chapters respectively analysis and discuss the problems above. Specifically, the fourth chapter compare and analysis the differences and similarities of protection scope between domestic and foreign design patent. some foreign countries have been tend to break through the product category for its design protection system is consistent. Parts of appearance design in our country wasn’t be protected, therefore it is imposible to breakthrough product category restrictions when deciding design patent infringe or not. this is also the interest balance between patentee and the public. I thinks our country should have the limitation of product category, but there should be some flexibility in the infringement. The fifth chapter analyzes the similarities and differences of the infringement judges between domestic and foreign comparatively.I think it is possibile and rational to regard "general consumers" as the infringement judges.And give some advice to "general consumers". The sixth chapter analyzes the advantages and the shortages between the " confusion standards " and "innovation standards".And make a conclusion that China should introduce " innovation standard " and set up a part design protection system.moreover, I put forward my advice on how to use innovation standards and a part design protection system to infringe in practice.