First, belonging to similar products is the premise of judging the infringement of design.
1. When judging the design patent infringement, we should first examine whether the accused infringing product and the patented product belong to the same category. If it does not belong to similar products, it does not constitute an infringement of the patent right of design.
2. When examining whether the patented product of design and the infringing product belong to the same kind of product, it should be determined whether they belong to the same kind of product according to the classification habit of commodity sales and the objective actual situation, with reference to the classification table of design (international classification table of design).
3. Product similarity is the premise of judging design infringement, but it does not rule out that under special circumstances, designs between similar products can also be judged as infringement.
Second, the eyes of ordinary consumers are the criteria for judging design infringement.
1. The judgment of design patent infringement should be based on the eyes and aesthetic observation of ordinary consumers.
2. As a special consumer group, ordinary consumers refer to the buyers or users of similar products or similar products with design patents.
Third, overall observation and comprehensive judgment are the main ways to judge the infringement of design.
1. Compare the design of the accused infringing product with the design of the patented product, and make overall observation and comprehensive judgment to see whether they have the same aesthetic feeling.
(1) If all the constituent elements of the two are the same or similar, the court shall consider them to be the same design.
(2) If all the elements of the two are not the same or similar, the court should regard them as different designs.
(3) The main parts (major parts) of the constituent elements are the same or similar, and the minor parts are different, which shall be deemed as different designs.
(4) The size, material, internal structure and performance of products cannot be used as the basis for judging the differences and similarities between them. However, the proportion factor between the parts can be considered. The comparison should focus on the main aesthetic design part (necessary part) created by the patentee and the corresponding part of the accused infringing product to see whether the defendant copied or imitated the original design part of the manuscript.
2. When comparing the accused infringing product with the patented design by isolated comparison and observation in different places, if it does or may cause misunderstanding among consumers, it can be concluded that the accused infringing product and the patented design are identical or similar in composition. (For reference when the court makes a conclusion of infringement)
Four, how to treat the product comparison in the design infringement judgment?
1. When judging infringement, the design of the product accused of infringement shall be compared with the design reflected in the picture or photo protected by patent; When the design of the patentee's product is the same as the picture or photograph, the design of the two products can also be directly compared. In the judgment of design patent infringement, it is mainly to compare the infringing product or the pictures and photos of the infringing product with the shapes (shapes), patterns and colors displayed in the pictures or photos of the design to see if they are the same or similar. It should be noted that the design patent is protected by the design of the product represented by the pictures or photos submitted by the patentee when applying for the patent. Product is the necessary carrier of design. Therefore, if the patentee changes the appearance of the product after the application, then this product cannot be protected by the original design patent. In the infringement judgment, the comparison should be based on the pictures and photos submitted by the applicant when applying for a patent in China Patent Office and authorized to announce, rather than the patented products manufactured by the patentee after applying for a patent. Because the former determines the scope of protection of design. Only when the appearance of the patented product is the same as the pictures and photos submitted by the patentee to the Patent Office when applying for an appearance patent, and both parties agree, can the appearance of the two products be directly compared.
2. In the case that both the plaintiff and the defendant have obtained and implemented the design patent right, if the designs of the two patented products are the same or similar, it can be concluded that the act of obtaining the design later infringes on the previously obtained design patent right. Due to censorship, repeated authorization of designs or similar subordinate designs often occurs in judicial practice. According to the principle of prior application stipulated in the patent law, the patent right of prior application should be protected. At this point, there is no need to wait for the plaintiff to request the Patent Reexamination Board to declare the patent right invalid. In other words, the defendant has obtained the same or similar design patent right as himself, so it is meaningless to defend the infringement.
Five, the principle of equivalence, estoppel principle does not apply to the design infringement judgment.
The principle of equivalence and estoppel adopted in judging the infringement of inventions or utility models are not applicable to judging the infringement of design patents. This is because the design is different from the content of invention patent and utility model protection. The principle of equivalence is a common principle to judge whether the patent litigation for invention and utility model constitutes infringement. Because the technical scheme of invention and utility model protection is invisible and intangible, the technical scheme recorded in the claim should be analyzed and compared with the technical characteristics of the infringing object to make a judgment. When applying the principle of equivalence, we should not only look at whether the technical characteristics are equivalent, but also look at its function, function, purpose and effect. But the protection content of design is different. It is only necessary to compare whether the design of infringing products and the design of patented products constitute the same or similar, which has nothing to do with the application of the principle of equivalence. The principle of estoppel is the principle of infringement judgment under the principle of equivalence. Since the principle of equivalence cannot be used to judge the infringement of design, of course, the principle of estoppel should not be applied.
Six, in the design infringement judgment, the same and similar identification.
In judicial practice, it is easier to judge whether the infringing product is the same as the patented product of design. Once they are the same, it is indisputable to determine the infringement. However, in real life, infringing products are often completely changed and rarely copied completely. For example, the shape and size of the product change, and the pattern changes. In this case, it is necessary to judge whether the infringing product is similar to the patented product of design. When judging the patent right of design, similarity should be regarded as infringement of patent right.
1, to determine whether it constitutes an infringement of the design patent, the identification standard is to see whether the design of the accused infringing product is the same as or similar to the patented design, and if it is, it constitutes an infringement of the design patent. First of all, it should be noted that the same or similar is the standard to judge whether a design constitutes infringement, while the standards for design authorization and invalid examination are different and similar. These two standards are expressed in opposite directions on the same scale. However, this different expression is of great significance, that is, in two cases, the focus of law enforcement observation and thinking is just the opposite. The identity or similarity here should mainly refer to the visual and aesthetic identity or similarity.
2. It should be compared whether the design of the patented product and the design of the accused infringing product constitute the same or similar.
(1) If the main design parts such as shapes and patterns are the same, it shall be deemed as the same design;
(2) If the main design parts of the elements are the same or similar, but the minor parts are different, it should be considered as approximate design;
(3) If the main design parts of the two are different or similar, they should be considered as different or similar designs.
3. The dimensions, materials, internal structure and performance of the patented product and the alleged infringing product shall not be used as the basis for judging whether they are the same or similar. In judicial practice, when judging the infringement of design, the size, manufacture, internal structure and product performance of the product are the most likely to attract attention, and are used as the points of attention to judge whether it is the same or similar. However, these contents are not completely the contents of design protection, but the contents to be excluded in the authorization review. Therefore, it should not be considered in the infringement judgment. That is to say, when judging the infringement, it cannot be considered as different reasons without considering the major changes of the accused infringing product and the patented product, the changes of materials and internal structure.
4. For a design that needs color protection, it shall be determined whether the shape of the design belongs to a well-known design. If it is well-known, it should only be judged by its pattern and color; If the shape, pattern and color are the contents of the new design, it is necessary to judge by the combination of the three. When applying for a patent for design, when the main part of the design to be protected focuses on color, the applicant must declare that he wants to protect color. At this time, in addition to a black-and-white photo, the applicant must also submit a color photo, and indicate the name of the color requested for protection in the brief description, instead of specifying the specific color in words. Color is difficult to express accurately in words, especially when the appearance color of the product is a combination of multiple colors. When judging infringement. If the design patent requires the protection of a specific color, and the product accused of infringement is the same as the color declared by the patentee, it constitutes infringement. How to treat the relationship among shape, pattern and color in a design? If the color of the design is not indicated in the pictures and photos, it constitutes infringement for others to use the same or similar shape as the patented design on the same commodity; Using the same or old shape as the patented design and adding color still constitutes infringement. If the patent requests to protect the color, and others use the same or similar shape and color on similar goods, the infringement is established; If the objects accused of infringement are different or similar in shape but the same in color, it does not constitute infringement; if they are the same in shape but different in color, it does not constitute patent infringement.
5. In the case that the patented design product is a single important part, the alleged infringing product is the same or similar to the patented design product, and the known design part is the same or similar, which constitutes infringement; If the main parts are different or similar, but the well-known design parts are the same or similar, it does not constitute infringement; Where the parts are the same or similar, but different or similar to the known design parts, it does not constitute infringement. The basis of this judgment method and conclusion is mainly based on the overall product of design, rather than the local protection of design patents.
6. In the case that the patented product of design consists of several important parts, if one or several important parts are different, the last leaves are not similar, and the overall observation is not the same or similar, it is not enough to constitute infringement; If it still constitutes the same or similar in general, it constitutes patent infringement.