Research On The Follow-up Protection Of Copyright In Invalid Design (Patent)

In the respective legal fields,the patent law and the copyright law can provide protection when carrying on the design of a product at the same time consistent with the protection of patent law and copyright law.But there is no specific law in China regarding the problem that if the copyright law give protection for the design of Invalid design patent.There are two main types of solutions to this problem beyond seas,One is that all industrial designs can enjoy the absolute overlapping protection of copyright,another is to give limited double protection when the design patent right and copyright overlap.Based on the actual situation in China,we can't simply transplant the foreign model,but the think way of limitation of double protection is worthy of our reference.Combining with the practice and theory,This paper proposes a solutions to the reality of China: Based on the object of right of design patent and the specific interest of protection is Different from the copyright right,after the design patent become invalid,in a particular product area protected by the patent,Copyright shall not be subject to subsequent protection.However,in other areas except this particular product area,the corresponding design can still be protected by copyright.This solution,not only comply with the requirements of the theory of civil abandonment,but also meet the requirements of the theory of balance of interests,and can play a role in balancing the interests of the parties,So as to effectively solve the chaos of today's practice on this issue in our country.But there is still a potential problem with this solution.That is,the design patent for some reason does not meet the conditions of patent licensing and may be declared invalid at any time;this means that the obligee does not have the opportunity to take the actual protection of the design patent.At this time,the right holder should be allowed to claim double protection of copyright as so far as corresponding design on the specific product,Otherwise it will make the interests of the obligee actually missing a piece.In order to solve the problem,First of all,it should be clear the definition of “Protected by design patent”;secondly,our country should perfect the system of design patent review at the right time.Our country should perfect the design patent inspection system when the time came.