Research On The Subject Standard Of “Ordinary Consumer” In The Judgment Of Design Patent Infringement

In the case of infringement of design patent,whether the two design patents are the same or similar is affected by the cognitive level of the judgment subject,but China’s “Patent Law” does not clearly stipulate the subject standard of the judgment of infringement of design patent.Due to the dispute on the understanding of “Ordinary Consumer” in theory and practice,the standards of “Ordinary Consumer” in judicial practice are not the same,and the result of tort judgment is also very different,which affects the authority of design patent protection.This paper tries to start with the overall composition and steps of the standards for judging the infringement of design in China,analyze and study the problems existing in the standards for“Ordinary Consumer” in China,and finally put forward suggestions for improving the standards for judging the infringement of design in China.The first part of this paper reviews the existing research and expounds the research background,theoretical significance and practical value of this paper.In the second part,this paper studies the composition and steps of the current judgment standards of design infringement in China.This paper holds that the similarity judgment of design patents in China is based on the knowledge level and cognitive ability of “Ordinary Consumer”.Only the accused infringing product and the design patent product belong to the same or similar category can constitute infringement,so from the existing regulations,it can only be concluded that the cognitive level of“Ordinary Consumer” is limited to the same or similar types of products.In the third part,this paper makes a specific investigation and analysis of the problems existing in the “Ordinary Consumer” standard.The standard of “Ordinary Consumer” originates from evaluation standard of design creativity in patent examination guide.However,in the process of tort determination,“Ordinary Consumer” are different results of mass consumers,direct purchasers and final purchasers,which ultimately affect the result of infringement judgement.In the fourth part,this paper makes a comparative study and analysis of the standards of the main body of design,in order to reflect on the future system improvement in China.Compared with the standard of “Ordinary Consumer” in China,the United States adopts the standard of “general observers”,the European Union adopts the standard of “informed users” and Japan adopts the standard of “demanders”.The common point is to apply the method of overall observation and comprehensive judgment to the design.The difference is that the United States and the European Union have a high level of protection for design creativity,which is also reflected in the recent legal changes of Japan.In the fifth part,for the perfection of the standards of judging the infringement of design in our country,the author thinks that our country should make clear the cognition level of“Ordinary Consumer” in the legislation.In the comparison of appearance design similarity,innovative standards should be adopted,and the protection of partial design and GUI design should be strengthened.