Research On The Principle Of Non-functionality In Design Patents

Influenced by the functionalism theory,the relationship between decorative features of design and functional features of design are becoming closer and closer,and the boundaries between the design patents,copyright,invention patents and utility model patents are becoming more and more blurred.Because of different objects exclude different degrees of functional design,the principle of functional exclusion plays an important role in the process of preventing overlapping protection.At the same time,the research on the functional exclusion principle of exterior design has not been stopped.With the increasing dependence of the decorative features of the design on the functionality of the product,new interpretation rules have been put forward.Therefore,this paper takes the duality of appearance design as the starting point to study the functional exclusion principle of appearance design.The core of the research on the functional exclusion principle of design is to distinguish it from copyright,invention patents,and utility model patents.The two concepts of decorativeness and functionality run through the process of distinguishing the three types.The decorativeness of design is a concept that exists relative to the functionality of the design.In the legislative practice of many countries,it is interpreted as the visual impact brought by the design to people,and this interpretation violates the objectivity of the law and has caused many disputes in the judicial practice.As a standard for distinguishing design from invention patents and utility model patents,the meaning of functionality also changes in different contexts.The premise of design authorization is that the design must be attached to a certain industrial product,and functionality is one of the characteristics of industrial products.The original intention of the concept of design patent was to protect the design works of designers,so it also has the non-functionality.How to define “functionality” and“non-functionality” has become a difficult issue,so some scholars have divided functionality into de facto functionality and de jure functionality.De facto functionality refers to the function of the product,emphasizing the technical functionality of the product;de jure functionality protects the function combined with the product design and is protected by the design patent.In addition,works of applied art,as a special type of subject matter protected by copyright law,has a competition and cooperation relationship with the object protected by design patents: both of them have decorativeness and functionality,and the difference is whether they can beseparated.However,with the expansion of the protection scope of copyright law and a larger separation standard dispute,the boundary between works of applied art and design patents has become increasingly difficult to define.In summary,to study the principle of functional exclusion of design,the following three points need to be achieved: firstly,to clarify the difference between “sense of beauty” and decorativeness,and the meaning of functionality in different contexts;secondly,clarify the differences between design patents and works of applied art,invention patents,and utility model patents;thirdly,to study the application of the theory of functional exclusion in various countries and conclude the appropriate judgment standard for China.China's<Patent Law>requires designs to have “a sense of beauty” so in judicial practice,it often takes human subjective impressions as the design authorization standards,which is not conducive to the development of the industrial design field and has strong limitations.The current <Copyright Law> also lacks a definition of works of applied art;although it is explained in the revised draft,it does not clearly distinguish it from design patents.In addition,China's <Patent Law>not only lacks an interpretation of the principle of functional exclusion,but also does not explicitly exclude the protection of appearance completely determined by functions;moreover,its relevant provisions are only reflected in administrative regulations and judicial interpretations.It can be seen that it is necessary to clarify the theory of functional exclusion through legislative form;although China has used the principle of functional exclusion to a large extent in judicial practice,it lacks a unified interpretation and applicable standards for the principle of functional exclusion.Therefore,it is of substantial significance for China's judicial practice to draw lessons from the relevant legislation in Europe and America and clarify the status of the principle of functional exclusion through the legislative form.