Study On The System Of Partial Design Protection

On April 1,2015,SIPO issued the revised draft patent law of the PRC(draft)(hereinafter referred to as "Draft of Patent Law Revision" or “draft”).The draft introduced a partial design protection system.This is a major breakthrough in the protection of China's design system,making up for the lack of legislation in China's protection of partial designs.Although in recent years,the voice of introducing partial design protection has never stopped,but compared to the United States,Japan,the European Union and other regions that have been implementing partial design system for many years,our country still seems unfamiliar to it.The introduction of a new system will inevitably involve the legitimate discussion of this system and related problems.Does the introduction of local designs suits the economic development of China,the demand of innovation conforms to the development trend of international design system;whether it will be in conflict with the current patent system in our country,how to deal with such problems in the past,and how to construct the system in the future is worth discussing.For a whole new system in Chinas,it is usually the way of transplanting the law.But the extraterritorial law has its own characteristics;we cannot just absorb it all.Therefore,it is the correct way to consider the system of various countries and compare them,to sum up their advantages and disadvantages,and to build up the partial design protection system according to our national conditions.The first part of this paper mainly points out the lack of protection on partial design and the problems brought by the present law in China.This paper first introduces the basic content of the partial design system,by enumerating the regulations other countries on the partial design,showing the lack of protection in our country,and further analyzing the problems brought by the absence of the local appearance system in our country's practice.The revised draft,published in 2015,introduced a partial design protection for the first time in our country's legislation,which aroused wide concern in academia and the industry.But it only changed the definition,there is no guidance on how to build the specific system,so it is worth further discussion.The second part mainly discusses the legitimacy of introducing partial design protection in China.China's current legislation does not stipulate the partial design system.But the "Patent Review Guide" specifically excludes the protection of partial design.Therefore,whether the "amendment of the patent law" introduces the partial design system is legitimate,is consistent with our country's legal framework and basic national conditions,worth further consideration.This part first demonstrates that the introduction of local design in China has realistic needs,in line with China's national conditions.Secondly,this paper analyzes the reasons why our country did not protect partial design in the past,and proves that these factors should not become or have not constituted the obstacle of introducing the partial design protection in our country.Thirdly,it analyzes the development and evolution of design legislation in our country,and reveals that our understanding of the object of design patent protection gradually expanded from the whole to the part.The introduction of the local design system has already possessed the system foundation and the practical experience in our country.The third part mainly discusses the suggestion of the construction of partial design protection system in our country.The introduction of the partial design system in the draft of patent law is of great significance to the development of the patent protection system of our country.However,there is no other change except for the definition of design patent.The specific system of partial design protection should be constructed in China,and it is worth further discussion.This chapter intends to carry on the comparative research to the foreign partial design system,draw lessons from the international design system's development tendency,systematically discusses the partial design system establishment and the consummation.This paper mainly discusses the definition of partial design,the submitting criterion of partial design application and the comparison of the similarity of partial designs.That the carrier of the partial design should not be limited to the integral part of the product,the name of the partial design should be the combination of the product and the part,the view of the submission of the specification should be combined with the actual situation,with a solid line highlighting the local design,and dotted line to show the full product appearance.In the comparison of similarities,the position,size and proportional relationship of partial designs in products should be used to limit the protection of partial designs in the light of the Japanese and Taiwanese methods.