Research On The Legal Problems Of The Infringement Determination Upon Industrial Design Patent

The infringement determination upon industrial design patent mainly includes these legal problems:subject,whether the product category is the same or similar and whether the design is the same or similar.It usually takes the "general consumer" or"ordinary designer in the field" as the subject of the infringement determination upon industrial design patent.Under the premise that the industrial design system of our country protects the aesthetic factors of the design,"general consumer" contradicts the legislative purpose of the industrial design system.From the enhanced protection of the industrial design patent,"ordinary designer in the field" should not be the subject of the infringement determination upon industrial design patent.The subject of the infringement determination upon industrial design patent should be "user".Product is the carrier to industrial design.Invisible industrial design needs to be reflected through the product.The infringement determination upon industrial design patent should be limited to the product.The same or similar product category is the prerequisite for the infringement determination upon industrial design patent.Whether the product category is the same or similar depends on "use".For the industrial design of the same or similar determination should follow the "overall observation,comprehensive determination",also visual direct observation and parallel alignment should be used.Taking into account the use of the product,a variety of use status,size,placement,product orientation and other factors when identify the parts that are easily observed when the product is used,and give them more consideration while determining.The industrial design features different from the existing design should be considered more.It should take no consideration on the design which is determined by the function and without aesthetic factors,the product material,internal structure and other factors which do not have an impact on the overall visual effects neither.