How to identify appearance patent infringement, how to deal with appearance patent infringement and how to deal with appearance patent right.

Determination of the scope of protection of a design patent According to the provisions of the second paragraph of Article 59 of the Patent Law, the scope of protection shall be based on the pictures or products patented in the photos submitted by the design patentee to the Patent Office when applying for a design patent, including front view, top view and side view. Among them, the front view is the most important, because it can best reflect the beauty of design. When determining the protection scope of the patent right of design, we should also pay attention to finding out the elements that can reflect the aesthetic feeling of design from these views. The scope of protection of design patent is obviously different from that of invention or utility model patent. The former is an aesthetic appearance that people can see visually, and the latter is a technical conception or technical scheme that conforms to patentability. Two, to determine whether the patented product of design and the infringing product belong to the same or similar goods, judicial practice usually takes the function and use of the product as the standard, and at the same time refers to the classification of goods in the International Classification of Designs (namely the Locarno Treaty). If the patented product of design and the alleged infringing product are the same in function and use, they can be identified as the same or similar goods, and continue to compare in point 3 below. If they are different in function and use, we can conclude that they are neither the same goods nor similar goods, and then we can end our infringement judgment step and conclude that patent infringement is not established. Third, compare the design patent with the accused infringing product, that is, observe the patented design and the accused infringing product from the perspective of ordinary consumers and make an overall judgment. After comparison, the following three results may appear: (1) If the appearance design of the product accused of infringement is exactly the same as the patent, the former is considered to be within the scope of patent protection and the patent infringement is established; (2) The design of the accused infringing product is basically the same as the patent design in the main part, and the whole is similar. According to the principle of equivalence, the patent infringement may be established; (3) If the design of the accused infringing product is neither the same nor similar to the design of this patent as a whole, it is deemed that the accused infringing product has not fallen into the protection scope of the patent right, and the patent infringement is not established.