Research On Creative Judgment Of Appearance Design Patents

With the deepening of China’s strategy of strengthening intellectual property rights,the number and quality of patents have continuously and steadily increased.In recent years,China’s design patents have also made great progress,with the number of design applications and authorizations consistently ranking first in the world.However,the contradiction between the increase in the number of design patents and the generally low quality is becoming increasingly prominent,greatly affecting the in-depth implementation of innovation driven development strategies.It is the key to improve the quality of design patents to reasonably determine the creative elements of Chinese design patents in the process of patent infringement confirmation.The creativity of appearance design patents is different from that of invention patents and utility model patents,as well as the originality of works.It involves the interests of multiple subjects such as designers,consumers,and the public.From the perspective of stakeholders,the world created by designers embodies years of hard work and sweat,and these intellectual achievements should be protected by patent laws;At the same time,the creativity of design patents is mainly reflected in their unique artistic style of "decoration" rather than the "non obviousness" of technical solutions,and their value is also mainly reflected in their "visual appeal" to consumers.Therefore,consumers’ subjective position in judgment is indispensable;However,the creativity of design patents is different from the distinctiveness of trademarks,and it must reflect the unique "beauty" of artistic creation,which cannot be separated from the basic judgment of ordinary designers.From the perspective of balancing interests,design achievements are the innovation of designers based on existing designs,and their innovative achievements should be encouraged;Ordinary consumers are the ultimate buyers of "visual perception",and their interests should also be protected;In order to ensure that the "existing design",as a publicly known part of society,should not be monopolized by individuals,and the exercise of design patent rights does not harm the legitimate rights and interests of others or the public interest,it is essential to endow ordinary designers with the qualification of judging the subject of design creativity standards.Therefore,in the creative judgment of design patents,it is necessary to balance the relationship between the interests of rights holders,consumers,and social public interests.From the current situation of the authorization and confirmation of design patents in China,it is evident that the existing legal system has a vague definition of the connotation of creativity in design patents,the qualification of the judgment subject is unclear,and the judgment methods and rules are not clear enough.As a result,there is also a great subjectivity in the judgment results in practice.This paper attempts to combine the specific theoretical practice of determining the creative elements of design patents between China and other countries and regions,and provide suggestions for the determination of design creativity in China from the following aspects: firstly,further clarify the connotation of "having obvious differences";The second is to clarify that the creative judgment subject should be ordinary designers;The third is to conduct an "overall observation and comprehensive judgment" on the design patent,and consider the impact of factors such as product type,design space,and design elements on the overall visual effect.