Research On The Scope Of Protection About Design Patent Right

At present,there is a difficult problem in the world's jurisdictions where the protection of design patents is implemented,that is,how to determine the scope of protection of design patents.The object of protection of design patent right is a new design which is aesthetic and suitable for industrial application.It belongs to the collection of information in essence.It is vague and only exists in human thinking activities.Therefore,unlike property rights which can reduce conflicts of rights through spatial segregation,they can only rely on relevant pictures or language to express the scope of rights that the patentee asks for protection,which the authorized authority agrees to protect and which the public thinks can be protected.However,pictures or language itself inevitably have subjective limitations and different interpreters interpret them differently in different contexts.In the practice of judging infringement of design patents and patent examination,there are always disputes about the scope of protection of design patents.Undoubtedly,the determination of the scope of protection of design patent right has become a hot issue in the intellectual property field,and it is also the most important issue to solve the dispute of infringement of design patent.For such an important issue,the rules of patent system in various countries at the level of statute law are almost "crude".China's Patent Law only stipulates it in principle in article 59,paragraph 2,so this article can not play a comprehensive guiding role in the practice of judging patent infringement of design.Appearance design is based on products,but the determination of related products is inseparable from the external economic environment,so the meaning of the same product is different in different economic environments.There is no clear meaning of "product" in the relevant laws of our country,which makes some new appearance designs unable to obtain the authorization of design patents.Moreover,statutory design application documents are limited to requests and pictures and photographs,which inevitably sometimes produce negative effects that cannot be accurately expressed.In addition,the Patent Law does not mention how to use pictures or photographs in patent application documents to determine the scope of protection and how to interpret claims with a brief description.Therefore,the above clauses only have the function of direction guidance.It is necessary to explore and study the theoretical and practical problems in the process of determining the scope of protection of patent right for design.Through research,this paper proposes that the scope of protection of design patent should selectively break through the restrictions of product categories.Specifically,for creative design,the scope of rights should break through the restrictions of product categories;on the contrary,the scope of rights should be strictly limited to the product design shown in pictures or photos.In addition,through the study,it is found that it is very necessary to establish the system of partial appearance design in our country.We should learn from the practices of major foreign countries,increase the legal protection of partial appearance design and clarify the basis for the definition of its scope of rights,so as to avoid the disputes caused by the lack of system.