Study On The Rules For Determining Infringement Of Partial Design Patents

With the development of the manufacturing and design industries,the appearance of various products has become very mature,and it has become very difficult to create disruptive and revolutionary designs,and the innovation of design is more localized in products.However,in the consumer market,users’ needs for product appearance are more diversified and they are increasingly pursuing differentiated product appearance,and localized design innovations are increasing,which is becoming the mainstream.Protection of partial design patent is very necessary at present.Although China’s patent law incorporates partial design patents into the scope of protection,the provisions is more principled,meanwhile it does not establish a special partial design patent infringement rules.So how to build a set of local design patent infringement determination rules for China is very necessary.This paper is divided into four parts.The first part studies the basic theory of partial design patent system.This part summarizes the concept and characteristics of the system,and its uniqueness is mainly expressed in the following three aspects: the indivisibility of the partial;not high requirements for product tangibility;the relative independence of the partial.It summarizes the necessity of establishing this system: it unites human intellectual creativity;it contains rich commercial value;it does not lower the standard of design recognition;it helps secondary innovation in the design field;and it is consistent with the developed Western countries.On the basis of the above analysis,the content and role of the infringement determination rules related to this are discussed.The second part summarizes the current legislative and judicial status of China’s partial design patent infringement adjudication rules.At present,China’s legislation in this area is still in its initial stage,and the provisions are so general that they cannot be directly applied.There are only GUI design patent infringement dispute cases in the judicial aspect.By analyzing the current situation,the following problems exist in this field in China: it is difficult to define the scope of protection;in terms of judging subjects,China has not yet formed a unified understanding on how to determine the judging subjects;in terms of similarity judgment,the current judgment method cannot highlight the innovation and changes in the details of the local appearance,but still considers the overall appearance,which deviates from the legislative value of this system.The third part introduces the partial design patent infringement legislation and judicial practice in the United States,the European Union and Japan.At the same time,a comparative analysis is conducted on the rules for determining partial design patent infringement in foreign countries,comparing the advantages and disadvantages of each country’s system.After the comprehensive comparison,it sorts out the significance of foreign rules to China.The fourth part discusses how to build China’s partial design patent infringement determination rules.The trial thinking should be updated.When making judgment,the impact of differences between the details on the overall observation should be paid attention to.It must adhere to the method of judging the important part,the difference and similarity of the important part itself should account for a higher proportion,while comprehensive consideration should be given to the position of the part in the whole,the relationship presented,whether it is prominent enough and other factors.In judging whether the partial design patent constitutes infringement,the product type on the partial design patent limited role can be appropriately relaxed.In the determination of patent infringement,comprehensive consideration should be given to confusion theory and innovation theory,at the same time the use of important part determination judgment method should be adopted.The content of the dashed line presented can not be completely disregarded,and the dotted line part plays a reference role.In terms of judging the subject,the special consumer standard should be adopted.Special consumers should have a better understanding of the performance,usage and existing design of the product.In terms of similarity judgment,the three-quadrant comparison method should be used.The core judgment is to analyze whether the infringing product is closer to the partial design patent right or to the existing design.