After applying for an appearance patent and obtaining the patent right, the applicant can be protected by law, and can get support and compensation in case of infringement by others. What is the standard for judging the infringement of design patents through cases? Case introduction: Xu Moumou, the plaintiff, claimed that he submitted an application for a patent for design named "Bantai (Supreme)" on October 20 1010, and was authorized. Later, it was discovered that defendant A Co., Ltd. produced and sold products that infringed the plaintiff's patent right without permission, so it sued for judgment. Defendant A Company argued that the defendant's furniture was substantially different from the plaintiff's products in overall visual effect, and the plaintiff's products belonged to the existing technology, which had already produced the same products before the plaintiff's patent application date, so the defendant's behavior did not constitute infringement. Court trial: The court found through trial that both the patented product and the alleged infringing product in this case are desks and belong to the same category of products. Compared with the plaintiff's design patent, the defendant's products are quite different and the overall visual effect is obviously different. The defendant's products do not fall within the protection scope of the plaintiff's patent. Compared with the plaintiff's design patent, the products on the defendant's publicity materials have no substantial difference in overall visual effect, which constitutes an approximate design, and the products on the defendant's publicity materials have fallen into the protection scope of the plaintiff's patent. The defense of the defendant's preemption and the defense of the existing design are not supported by the court because of insufficient evidence. Therefore, the defendant was sentenced to immediately stop the infringement, compensate the plaintiff Xu for his economic losses and reasonable expenses, and reject the plaintiff's other claims. Case study: standards and methods for judging design infringement 1. Regarding the criteria for judging infringement, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Patent Infringement Disputes establishes the overall visual effect mode: when the people's court determines whether the design is the same or similar, it should make a comprehensive judgment according to the design characteristics of the authorized design and the accused infringing design. This standard is developed on the basis of confusion standard and novelty standard which have been used for a long time in practice. Because the above two standards have their own disadvantages in practice, the overall visual effect standard is based on the choice of the two standards. Confusion standard refers to judging whether the appearance of the accused infringing product is the same as that of the patented product, which should be viewed from the perspective of ordinary consumers. In the eyes of ordinary consumers who have the observation power that buyers usually have, the two designs are the same or similar. If the observer buys the accused infringing product on the basis of mistaking it as a product, it can be considered as infringement. Novelty standard means that when judging whether the accused infringing product constitutes infringement, it should be based on whether the product with design patent right contains innovative design that can attract the attention of a certain group of consumers and whether the accused infringing product contains the same innovative design. If the accused infringing product also contains innovative designs that ordinary consumers can observe in the design patent, it constitutes infringement. It can be seen that the confusion standard pays more attention to the artistic beauty of design, while the novelty standard pays more attention to the practicality and innovative design in design. In practice, these two standards can be used as the standards for judging infringement, and in most cases, they do not conflict. However, in some cases, if only one standard is simply applied, unreasonable conclusions will be drawn, which will affect the fairness of the referee. Therefore, the Supreme People's Court adopted a compromise method when judging the infringement standard of design: according to the design characteristics of authorized design and accused infringing design, comprehensively judge the overall visual effect of design, that is, the overall visual effect standard. 2. Regarding the judgment method, we should take the overall visual effect standard as the guide, and adhere to the judgment method of overall observation, comparison of important parts and comprehensive judgment. Overall observation refers to observing the shape, pattern, color and their combination of the design from all angles, and the overall image of the designed product can be obtained. If the overall visual effects of the two are not significantly different, it can generally be considered that they are not the same or similar. However, this does not necessarily lead to the judgment of non-infringement. If the patentee claims that although there is no significant difference between the two on the whole, the innovative design is completely consistent, it should strengthen the comparison of innovative design of appearance design products, that is, novelty points, on the basis of overall observation. When China revised the Patent Law in 2008, it was required that an application for a patent for design should submit not only pictures and photographs, but also a brief description, which should describe the design characteristics of the designed products, which is the basis for comparison among major departments. At this time, it is necessary to compare the design points of the accused infringing patent products with those of the patented products one by one to judge their similarity.
Legal objectivity:
Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Disputes (II) Article 14 When determining the knowledge level and cognitive ability of ordinary consumers on design, the people's court shall generally consider the design space of the same or similar products authorized by the design at the time of the alleged infringement. If the design space is large, the people's court can conclude that ordinary consumers usually don't easily notice the small differences between different designs; If the design space is small, the people's court may conclude that ordinary consumers are usually more likely to notice small differences between different designs. Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Disputes (II) Article 15 If the design patent of a complete set of products is the same as or similar to its design, the people's court shall determine that the alleged infringing design belongs to the scope of patent protection.