Research On The Benchmarks For Confirmation Of Design Patent Right In My Country

In China,patent inspectors don't need to search for comparable materials during the process of Preliminary examination of design patent.They only audit the form of the application materials to decide whether to authorize it.The substantive examination in accordance with article 23.1 will usually occur during the narrow sense approval stage.The third revised patent law and related rules and Guidelines for patent examination 2010 has applied for nearly ten years.Practice shows that while local provisions are good in principle,even though the approval standards have been improving.For instance,there is still no clear legal provisions about the subject of judgment,the considering factors of comparison of the patent and contrast design,combination method and the method of judgment.This leads to the approval process relying mainly on the inspector or the judge's subjective judgment.The objectivity of judgment and the uncertainty of results needs to be solved urgently.Patent law is being revised for the fourth time,so now I will offer some insight into several controversial issues involved in the process of design patent approval in this paper.The text is divided into three parts,mainly about several important elements involved in the process of design patent approval:The first part introduces the basic knowledge of design patent approval,mainly by expounding the design patent,the procedure of approval,the standard of approval,and the relationship between the procedure and standard.The main content of the part is the meaning of design patent.The main content of the part of the procedure of approval is the relative rules of application review authorization,patent reexamination,patent invalidation and the administrative litigation procedure.The part of the standard of approval mainly introduces the concept and function of subject of judgment,design freedom,transformation and the method to judge the novelty and creativity of the patent.This part mainly introduces the basic legal concepts,which lays a theoretical foundation for the subsequent chapters to carry out the analysis and demonstration of the relevant content.The second part introduces the problem of the subject of judgment,the design freedom,transformation,method of combination,and the method of judgment in the process of approval.The problem of the subject of judgment is that there is no uniform standard of population and the lack of objective basis for knowledge level.The problem of design freedom is the lack of legal basis for evaluating reference factors.The problem of transformation is that it is still need to further clarify the combination of structure or design elements.The problem of method of judgment is the lack of detailed guidance for comprehensive observation.The third part introduces the subject of judgment in the process of approval and the method to improve their cognitive ability,makes suggestions of the method to make the cognitive ability of the subject of judgment more objective and visual.This part still introduces the rules of the design freedom and the method of application.The design freedom has been a consideration when making a judgment in the practice of examination of design patent during the invalidation procedure and appearance design patent administrative litigation.Although,there are no clear provisions in the Patent law or Guidelines for patent examination rules,the inspectors still need to consider the design freedom during the approval process.Therefore,it is necessary to clear the standard of application.This part still introduces the better idea of whole observation and comprehensive judgment.The method of judgment of design patent approval has always been a controversial issue,because of the appearance design and invention or utility model which means specific technical solutions are different.This part proposes a relatively objective judgment considering a variety of factors.