How to judge that one's appearance patent has been infringed?

The patented product of design is a commodity with more daily life than the patented product of invention and utility model. Ordinary consumers tend to ignore the nuances of similar products, while professionals can easily distinguish them. When judging whether the accused infringing product is the same as or similar to the patented product of design, it is obviously unfair to the obligee from the professional point of view. Therefore, judging the infringement of design patent should be based on the aesthetic observation ability of ordinary consumers, not the aesthetic observation ability of professional and technical personnel in the field of design patent. For the same or similar products, if ordinary consumers generally pay attention to avoid confusion, it does not constitute infringement, but if ordinary consumers still pay attention to confusion, it constitutes infringement.

Taking ordinary consumers as the main body of infringement judgment does not require the people's court to investigate the opinions of real consumers when trying disputes over patent infringement of design, but requires the judge to put his position on the level of ordinary consumers to understand and perceive the similarities and differences of the comparison objects.

Comparative method 1: visual observation

To judge whether the accused infringing product is the same as or similar to the patented product of design, it is necessary to judge whether ordinary consumers will be confused when observing with the naked eye, and it is impossible to analyze and compare the parts that cannot be observed with the naked eye by instruments or chemical means. Observation should be based on the similarity and difference of the easily visible parts of the product.

Comparative Law 2: Direct Comparative Law

When making a specific judgment, we should first separate the patented product of design from the product accused of infringement, and there should be a certain interval in time and space when observing it. This isolated observation method can make the judges have an intuitive feeling about the two products, that is, an impression. Secondly, put the two products together, and the judges will directly compare and analyze the designs of the two products, so as to describe their similarities and differences, upgrade perceptual knowledge to rational knowledge, and finally draw a conclusion whether they are the same or similar.

Comparative method 3: overall observation and comprehensive judgment

Comprehensive evaluation of the main components and innovations of the two product designs.

Comparative law, similar to the approximate judgment of trademarks, is now more regarded as the focus of comparison, to see whether the accused infringing products copy or imitate the production part of the obligee.

Accused of infringing products constitute infringement must meet two conditions:

First, the alleged infringing product contains the productive part of the design patent (that is, innovation).

Second, the accused infringing product is the same or similar to the patented product of design on the whole.

When comparing the designs of two products, we should generally follow the order of modeling, pattern and color. When judging whether the design composed of shapes, pictures and colors is the same or similar, we must first judge whether the shapes are the same or similar. If the shapes are different and similar, it can be concluded that the designs are different and similar, and there is no need to compare patterns and colors.

If the shapes are the same or similar, but they belong to the known prior designs, it should be further judged whether the patterns are the same or similar and whether the patterns are different, so that the appearance designs are different or not, and there is no need for color comparison;

If the patterns are the same or similar, but belong to known prior designs, it is judged whether the colors are the same or similar. Different or similar colors do not constitute the same or similar design, and the same or similar colors constitute the same or similar design.

Among the three elements, shape is the most important, and the comparison of shape should be the main way to judge infringement. If the appearance and shape of the product are initiated by the patentee, and the accused infringing product uses the shape and adds patterns, then no matter what patterns are added to the accused infringing product, it shall be deemed as infringement.