On The Infringement Rules Of Partial Designs

Today,as the industry is becoming more refined and the appearance of products is homogenized,innovations in product appearance are often gradual.In other words,companies often innovate in a certain part of the product to attract consumers.Partial design has gradually received attention.Although China does not rule out the protection of partial designs in legislation,it is clearly stated in the relevant regulations [see Patent Examination Guidelines(2010)] that the design of product parts cannot apply for design patents.Due to the “formal review” of the design of the country,many partial designs can also obtain the design patent right,but the rights obtained through this method are unstable,which is not conducive to encouraging innovation.The judicial organs of our country have responded to the emergence of partial designs.In the judicial practice,the “local element rules” have been gradually formed to protect the intellectual work results of the designers.Undoubtedly,the introduction of "local elements" plays a role in protecting local designs to a certain extent,but it also has some factors that are not conducive to protecting local designs.China's "local factor rules" are based on "confusion standards." However,on the one hand,the "confusion theory" is inconsistent with the legislative purpose of the design legal system;on the other hand,the "confusion standard" has many problems in its application: it is not conducive to the protection of the local design;the transfer of the authorization design(to Other types of products cannot be considered infringement.The study of these issues and the improvement of relevant rules are the focus of this paper.There are four parts in this paper.The main contents of each part are as follows:The first part lays the foundation for the following by exploring the relevant theories of partial design.It mainly includes the conceptual interpretation of the partial design,the independent value and the legal significance of the carrier.This paper believes that the partial design has independent value and is worthy of protection from the overall design;the carrier of the partial design does not have legal significance,and the protection of the partial design should not be limited to a specific kind of product.The second part mainly explores the rules for determining patent infringement of partial designs in China's judicial practice.In practice,the judiciary gradually formed the “local element” refereeing rules,that is,under the principle of adhering to overall observation and comprehensive judgment,considering factors such as “important parts”,“design features” and “design space”,and considered These factors have a significant impact on the overall visual effect.However,this judgment rule is based on confusion,and the confusion theory does not conform to the purpose of the design legal system.In addition,the introduction of local features can play a role in protecting the local design to a certain extent.However,the "local element rule" also has the following disadvantages: the local element identification standard is not uniform,the expected possibility problem,and the functional feature identification standard are not uniform.The third part introduces the partial design protection system of other countries in the United States and Japan.The United States did not establish a separate protection system for partial designs,but instead protected them according to the overall design protection rules.The US design patent infringement judgment standard has undergone two adjustments,and finally formed the standard of “ordinary observer detection”.Regarding the method of determining the patent infringement of the partial design,the United States recognizes the independent value of the partial design,and then,when judging whether the infringement allegation is established or not,only the part of the authorized design and the corresponding part of the controlled infringing design are considered to be the same or similar.In addition,regarding the determined form of the partial design,the local design can be determined in the form of “solid line + dotted line” by referring to the practices of the United States and Japan.The fourth part is the improvement of the rule of infringement of patent for partial design.First,explore the scope of protection of partial design patents.This paper proposes to incorporate the single contrast rule in creative judgment into the existing infringement judgment standard based on the existing infringement judgment rules,so that the partial design can be better protected.Secondly,regarding the design of the same and similar judgment subject,this paper believes that it should be consistent with the above-mentioned infringement judgment standard,that is,“general consumer + ordinary designer”.In judging whether the design is similar,the United States and Japan adopt different methods.This paper proposes to recognize the independent value of the partial design,and only needs to compare the part of the authorized design with the corresponding part of the controlled infringing design.Finally,after sorting out several methods for identifying functional features,it is recommended that China adopt an objective test method.