Reflectionand Amending The Judgment Principles Of Design Patent Infringement

Globalization has brought many opportunities to China’s economy,and the importance of intellectual property rights in economic activities is increasingly obvious.With the awareness of independent innovation in China,patent protection is becoming more and more important.As the most intuitive part of the product,the unique and novel shape,pattern and color play an increasingly important role in product sales.China’s design patents have made good achievements.However,there is still a lack of legislative basis for the determination of infringement of design patent,and the theoretical research foundation is relatively weak.There are endless disputes in theory and practice,and opinions are not unified,and there are still many problems to be solved.In China’s judicial practice,the main legal issues on the judgment of infringement of design patents include the judgment of whether the product types are the same or similar before the infringement judgment,and the selection of judgment subjects.In the face of new situations and new problems,China’s existing legal system has been unable to cope with,and the protection of external design patents has become increasingly prominent.In China’s judicial practice and theory,the confusion principle is generally recognized as the judgment principle of design patent infringement.However,the principle lacks a foothold in theory and is not in line with the legislative purpose of patent law.There are many problems in the implementation,such as incomplete protection of design,obvious plagiarism of different types of products is not recognized as infringement,and partial design is not available It is not conducive to the protection of intellectual achievements because of the problems such as the lack of effective protection for the design products with pure shapes or patterns,and the inconsistency of trial standards in judicial practice.The author analyzes the common and prominent problems in the infringement cases of design in our country,analyzes the classic cases to explain the problems,explains the judgment premise of confusion principle and the problems existing in the application of the judgment subject,and reflects on the causes and summarizes the problems.On the other hand,it comprehensively considers the relevant legislative status of foreign developed countries and the Supreme People’s court’s "on trial of patent" The latest legislative progress,judicial interpretation and theoretical viewpoints of several issues on the application of law in administrative cases of authorization and confirmation(1)(FA Shi [2020] No.8)and the amendment of the patent law of the people’s Republic of China(Draft)(deliberated on January 4,2019),and puts forward the amendment opinions more suitable for the judgment principle of patent infringement of design in China.The subject of the design patent protection system focuses on the innovative design itself.In order to better protect the design innovation activities,referring to the existing design defense and patent invalidation cases in the design patent infringement cases,the restrictions on the product category are gradually relaxed.It is suggested that in the future,in the design patent infringement cases,the product should be removed according to the specific case identification The protection scope of design patent should be appropriately expanded.Secondly,according to the latest judicial interpretation of the Supreme People’s court and the draft of patent law,the subject of judgment on infringement of design patent in China has begun to evolve,approaching "ordinary designers in their field".In judicial practice,we should unify the specific criteria for judging the subject and the specific types of cases,that is,according to the characteristics of different products,unify and refine the judgment principle,and objectively deal with the infringement disputes of design patents.For the application of the principle of innovation,the protection of design patent focuses on the protection of innovation,and its protection mode basically meets the development trend of China’s patent law.However,in the judgment of patent infringement of design,in addition to the consideration of innovation,the design space of relevant design features on the same or similar products(parties can submit evidence to prove the existing design status)should also be considered.In addition,a comprehensive comparison should be considered from the overall design.The more existing designs presented on the relevant design features,the design is empty the smaller the difference,the smaller the impact of the overall visual effect.Combined with the revised draft of patent law in 2019,the author suggests that in order to improve the scope of patent protection in judicial practice.,local design should be protected in the future.