The Research On Copyright Protection Of Expired Design Patent

Whether industrial design with both practical and artistic characteristics can be protected by copyright law after its patent expires has always been controversial in the theoretical circles.Because the existing laws of our country do not explicitly stipulate that the design of patent invalidation should be excluded from the follow-up protection of copyright law,judicial judgments in different places have also resulted in different judgments in the same case.Whether the design can be protected by copyright law after the termination of the patent right is mainly reflected in two aspects: one is whether the design can be protected by copyright law as a work of art according to its design elements;the other is whether the design as a whole can be protected by copyright law as a work of practical art.At present,practical works of art should be listed as a kind of works protected by copyright law.This is the basic consensus that has been formed in the draft amendment of copyright law submitted for examination.Under this background,the issue of whether to protect design patents in accordance with copyright law after their invalidation will become more prominent.Can designs be protected by copyright law after their patents have expired? If the answer is yes,how should we protect it? This paper attempts to study the above problems and put forward my own understanding.In addition to the introduction and conclusion,this paper mainly consists of four parts.The first part is the academic debate on the follow-up protection of patent invalidation design according to copyright law.Scholars hold three different opinions on this issue: negative,positive and compromise.Negative theory regards the principle of intellectual property protection as the core,and holds that after the failure of a patent for design,it can not be followed up by copyright law;affirmative theory,based on the principle of dual protection of intellectual property,holds that after the failure of a patent,the design can still be followed up by copyright law;compromise theory holds that the protection of a subsequent copyright law after the failure of a patent for design is a condition.Follow-up protection,its protection effect only exists outside the design of a specific product.The use of the design by others in the sense of the design of a specific product should be regarded as the free use of invalid patents.This paper holds that the compromise view is more reasonable.The protection of the appearance design after patent expiration is legitimate according to copyright law,but at the same time,it should reflect certain limitations,that is,the scope of copyright protection should be limited to the original product appearance design function and form of expression,so as to coordinate the protection mechanism of different intellectual property rights when competing rights occur.The second part combs the judicial practice of protecting design patents in accordance with copyright law after their invalidation.Existing cases show that,in our judicial practice,there are two completely different attitudes towards the protection of design patents in accordance with copyright law after their invalidation.The court holding the negative view holds that the exterior design whose patent right is invalid will enter the public domain immediately,and the public can use it freely,so there is no infringement on the copyright of exterior design;the court holding the affirmative view holds that when the obligee has both the patent right of exterior design and the copyright of works,even if the patent right of exterior design is lost,others will not infringe upon it.When using the design,it is still possible to infringe the copyright of the design work.This paper holds that when judging such cases,the court should clearly distinguish between the scope of protection of patent right and copyright in design.The use of design by others in a particular product which is the same or similar to the appearance design of the defendant should be regarded as the free use of the invalid patent design and not infringe the copyright of the obligee.The third part is about whether the design patent can be protected by the copyright law after its invalidation.The system of France,Britain,Germany and the United States was emphatically examined.In addition to France,which adopts absolute dual protection of patent and copyright for design,Britain,Germany and the United States have not completely denied the possibility of copyright law follow-up protection for design after patent expiration.This paper holds that,while investigating the practice outside the country,we should closely integrate the actual situation of our country and build a legal and reasonable way to protect the appearance of patent invalidation in the follow-up copyright law in accordance with the national conditions.The forth part is about suggestions on how to legitimately and reasonably follow-up the protection of design in accordance with copyright law after its patent expires.Based on the previous studies,this paper argues that,on the premise of affirming the legitimacy of the follow-up protection of the appearance design of patent invalidation according to copyright law,and in order to coordinate the protection mechanism between different intellectual property laws,explicit provisions can be made in legislation to eliminate the problem of different judgments in judicial practice.It is suggested that in the third revision of the Copyright Law of China,an additional clause be added to the Copyright Supplementary Provisions to resolve the conflict between the protection of exterior designs invalidated by the Copyright Law and the Patent Law,so as to achieve the coordination between the protection of exterior designs by the Patent Law and the Copyright Law,so as to unify the relevant practices in judicial practice and maintain the authority of the law.