On Legal Protection Of Partial Design Patent

The implementation of the revised Patent Law in 2020 marks the formal establishment of partial design protection.It seems that only the word "partial" has been added,but it means a major change in the design system.China established the protection of partial designs late,lacking experience in theory and practice,there are still some disputes in many specific implementation methods and theories in academic circles,and there is no consensus on many important issues.The theoretical analysis of the specific implementation details of the partial design system still has important theoretical and practical significance.In order to better improve and perfect a legal system,it is necessary to clarify the starting point and value of the establishment of the system.The starting point of the partial design system is to promote the innovation of partial designs,rather than to protect the design products themselves.With the development of industrial technology and the gradual saturation of the design industry,the improvement of industrial products has shifted from the whole to the part,and the protection of the part design has a historical inevitability.The reason for the lack of partial design protection is that China’s previous attitude towards partial design protection focused more on whether to confuse consumers rather than the innovation of the design itself.Now that the partial design system has been established,the establishment of a system does not mean that it is done once and for all.With the rapid development of the times,many new problems will inevitably arise in practice.In the process of law enforcement,attention should also be paid to the expansion of rights and the balance of social and public interests,so as to give full play to the system’s greatest advantages without affecting public interests.The trend of globalization in today’s world is increasing,and the transnational development of the design industry is also unstoppable.China is currently actively preparing to join the Hague Agreement,which also requires the coordination and convergence of the relevant international systems of China’s design system.The partial design systems of the European Union,the United States,Japan,and South Korea have developed for a longer time than China,and their theoretical and practical experience can be used for reference.Judging from the current development stage and practice of China’s design industry,it is not appropriate for China to establish an excessively large scope of protection for partial designs like the EU and the United States.It should adopt a more conservative attitude like Japan and South Korea,so as to avoid excessive expansion of rights.The scope of protection of the partial design shall be limited to products of the same class and products that are highly related in use,and shall take into account the size,location and proportion of the partial design.Whether the product to which the partial design is attached can be physically divided should not be strictly limited.In terms of review and authorization,the naming method of "whole + part" should be adopted.The submitted views cannot ignore the overall product.The combination of dotted and solid lines or the blurring of virtual and solid lines can be used to clarify the parts and the whole to be protected on the surface.When making approximate comparison judgments,the factor of "design space" should be considered,and the principle of "overall observation and judgment of key parts" should be adopted.For new design products such as GUI,GUI designs that are strongly attached to physical products can be protected by partial design,and GUI designs that are less attached to physical products can be protected by a “whole + part” protection model.