Study On The Patent Protection Of Partial Design In China

Partial design refers to the innovative design of a part of the product.With the development of economy and society,the protection of partial design has become the development trend of the international design system.The United States,Europe,Japan,Korea and other countries or regions have successively opened up the legal protection of partial designs,which is in stark contrast to the gaps in patent protection of partial designs in China's current law.In 2015,CNIPA proposed to increase the patent protection of partial designs in the "Draft Revision of the Patent Law of the People's Republic of China(Draft for Comment)",which attracted widespread attention from the academic and practical circles.This paper first introduces the legislative provisions for the protection of partial designs in foreign countries,clarifies the current status of the lack of patent protection of partial design and the problems caused by it,and attempts to analyze the main reasons for this lack of status.Secondly,this paper demonstrates the legitimacy of increasing the patent protection of partial design in China from three aspects:actual demand,theoretical basis and practical basis.In order to meet the needs of domestic industrial development,to effectively protect partial innovation design and to integrate with the international system,there is a real need to increase the patent protection of partial design in China.The legislator's breakthrough in the understanding of "product-based carrier" has removed the basic theoretical obstacles for China to increase the patent protection of partial design,which is guided by the Legislative Purpose of Encourage Innovation and the Principle of Interest Balance.China has made a useful exploration and paving for the patent protection of partial design by protecting the GUI and granting individual partial designs patents in patent examination.Finally,this paper compares the specific implementation methods and implementation effects of extraterritorial law on the protection of partial designs from three aspects:the definition of protection object,the determination of protection scope and the special specification of application documents,and,and on the basis of this,with the consideration of China's industrial design level,the existing institutional system and the Principle of Interest Balance,explores the system design which is compatible with China's national conditions,and puts forward relevant specific suggestions for the implementation of the patent protection of partial design in China.China can follow the example of Japan to propose appropriate additional elements for the protection of the object,and should finitely recognize the severability of the product carrier.When determining the scope of protection of local design,China should take into account the "category of the products to be attached" and loosely grasp the criteria for its determination;it is advisable to take into account the "local relationship in the overall position" and strive to objectively evaluate its innovation value;but it is not appropriate to take into account the "use and function of the protection part".For the specification of the application documents,the product name should adopt the naming form of "whole plus local".The application view can be drawn by means of combination of virtual and real,and the overall form of the applied product should be clearly presented.At the same time,he role of the dotted line in the view should be described in the brief description to assist in explaining the scope of protection of the partial design patent.