Research On The Rules Of Determining Functional Design Features

In most countries,the rule of excluding functionality in design patent has been accepted,which is included in infringement and authorization,and is of great significance to explain and determine the scope of protection of design patent.But in the judicial practice,how to determine the functional design characteristics has become a difficult problem.In the world,it has not yet formed a unified standard.In this paper,it is trying to find a prefer method of judging.The preface introduces the research background and significance of this paper.The body is divided into four parts: The first part leads to the problem by the "logic programming switch case".At first,introduce the case whose focus is whether the distinguishing feature belongs to the functional design feature.In the process of judging and analyzing this issue,the views of the Supreme Court and the Review Committee diverge into two side: the review committee that the design features should be divided into functional features and ornamental features,and the Supreme Court point that should be divided into functional features,ornamental features and both of them;the review committee uses the mandatory approach,and the Supreme Court adopt that as for a common consumer,whether the design feature is solely determined by the function.The second part analyzes the related concepts and theories of functional design features.Design must include both functional and ornamental content.According to the degree of function and ornament,the design features should be divided into functional features,ornamental features and both of them,and this method is conducive to the determination of functional design features.Design is functional as a prerequisite,it includes the legal functionality and practical functionality.The third part analyzes the rules for the exclusion of functional design features,whose purpose is to: meet the requirements of the design patent,stimulate innovation,coordinate the internal system of patent law,avoid the monopoly of technological development.The rule should be based on part,it means that when a specific design feature can be identified as a functional feature,the feature is excluded,and the left are also valid.The rule has different legal consequences at different stages,like in the entity authorization phase are not considered,and in patent infringement the features are excluded from the patent.The fourth part is how to determine the functional design features.The current method of judgment is divided into two categories: subjective judgment and objective judgment.The subjective judgment method refers to the subjective state of the designer or the third person;the objective judgment method is based on whether the design feature is alternative.However,there are shortcomings in both methods,subjective judgment method is not operational and can not run independently,the scope of objective judgment method is too narrow.Finally,I put forward the idea of the transformation of the judgment method: expand the objective judgment method and add the judgment of the case with limited substitution.The conclusion part is the summary of this article,the author here to organize the above views and conclusions,and put forward the lack of this article.