Identification Of Infringement Of Partial Design Patent

With the refined development of the industry,the research and development of each enterprise to its products in addition to the improvement of its core technology,but also committed to studying the change of appearance design.However,for the relatively mature product field,there is not much variable space for the overall appearance design.In order to attract the attention of consumers,enterprises often carry out innovative design in the local part of the product.Before 2021,China does not have relevant laws to explicitly protect partial designs.However,in judicial practice,many right holders still expect to protect the local design,so the "local elements" rule is gradually formed to determine whether the local elements are worth protecting from the perspective of whether they have a substantial impact on the overall visual effect.Although the emergence of the rule can alleviate the awkward situation that the local design cannot be protected without the introduction of the local design system,there are still some limitations,such as the inconsistency between the "local elements" identified by the judicial organ and the parts that the right holder really seeks to protect.It can be seen that the "local elements" rule cannot completely replace the local design system.Therefore,the fourth amendment of the Patent Law clearly includes partial designs in the scope of protection,but its infringement determination standard has not been stipulated by judicial interpretation or relevant regulations.In order to better improve the identification standard of partial design infringement in China,the relevant legal norms of the United States,Japan and other countries should be studied and referenced from the perspective of comparative law.However,the national conditions and laws of various countries and China have some differences,so we should combine the actual situation of Our country,before identifying the local design infringement should determine the scope of protection,using the way of "solid line-dotted line" delimit the scope of protection;Then discuss the cognizant of infringement judgment standard,and continue the cognizant of overall design infringement with "general consumer" as the standard.As the partial design is different from the overall design,the identification of infringement should not be limited to the same or similar product categories,but the design is still the key to the identification of infringement.Finally,the influence of functional design characteristics on the determination of local design infringement is analyzed and the objective judgment method is suggested.