The Research On The Functional Features In Design Patent

In the traditional concept,the protection scope of design patent is limited into the appearance and shape of the product,in the patent authorization cases or infringement cases,the function of the product should be excluded from the protection scope.However,the function of industrial products is the premise of the industrial design,the function features will inevitably affect the design features and thus affect the appearance of the product.Design is a combination of characteristics inherently,has both functional factors and decorative factors,the legislation of the design mainly reflect this point.For the consideration of decorative factors,has always been the difficulty of judicial practice,but the extent of the "decorative(beauty)" requirement degree has been reduced in the practice,the aesthetic degree of design is no longer required to achieve the level of art works.At the same time,the functional factors as the opposite of the decorative factors,has become the focus in design patent dispute case.Functional factor as an important part of the design,it is completely different from the decorative factors.It is not feasible to exclude the functional factors from the scope of protection,but exclude the functional features from the protection scope is consistent with the essence of design and legislative purposes.In this paper,we try to systematically discuss the definition of the functional features and the method to judge the functional features through the study of the case and the practical experience of each country,and draw lessons from the practice of other countries to identify the functional features,extend the "function sole defining doctrine" and the type of design features,in order to solve the problem and provide new ideas and methods.The whole text structure is divided into five parts.The first part is the Supreme People’s Court new view and practical guidance on the design features.This part is straight to the point,cite Gaoyi v.Zhejiang Jianlong Sanitary Ware Co.,Ltd.design patent infringement dispute case,leads to the dispute in the practice of functional features in the design patent,the dispute of the functional features in practice have occurred frequently,it is also the stress of patent trial practice.The second part mainly discusses the complex characteristics of the design and analyzes the legitimacy foundation of the design protection.As a special intellectual achievement,the design has its own particularity,has both functional factors and decorative factors,so there are cross-protection in the legal situation.However the patent has its own independent legal status,it should be protected by law."Decorative(beauty)" is the core of the design protection,but how to identify its degree is a great difficulty,the degree of beauty requirements has been reduced in practice,and functional factors have become the main controversy and difficulty in the design cases.The third part is the study of functional factors in the design,distinguish the functional factors.Based on the practice of judicial practice of the United States,explore the attitudes change on the functional factors,if the functional factors are not purely functional features can be authorized to protect.The United States tried to distinguish the functional factors from the decorative factors in the design,but the practice caused a great deal of controversy and did not have practical value.To judge the functional features of the functional factors and exclude it from the scope of protection is feasible.The fourth part is the analysis of the criteria about the functional features—"function sole defining doctrine".Although the appearance is resulted to the product features,if the appearance to achieve the specific function is not unique,it may be protected by law."function sole defining doctrine" in the practice of Europe and the United States has been deconstructed into a number of specific rules,alternative programs(design space)has become an important rule in the application of this doctrine.Of course,this doctrine itself also has many deficiencies and disputes,this paper analyzes of these issues,absorb the experience of other countries,to amend and improve this principle.In the fifth part,on the basis of the above analysis,this paper attempts to construct a functional judgment mechanism which is suitable for our country’s actual situation.The paper constructs the definition of the principle,the type of functional characteristics and the judge subject so as to construct the functional features judgment criteria to give the corresponding reference.