1. Determine the protection scope of the design patent.
2. Determine whether the patented product of design and the infringing product belong to the same or similar products. Usually, it is based on the function and use of the product, and at the same time, it refers to the commodity classification in the international design classification. Where a patented product of design has the same function and use as the product accused of infringement, it can be identified as the same or similar commodity. If they are different in function and use, it can be concluded that they are neither the same commodity nor similar commodities, so patent infringement will not be established.
3. Compare the design patent with the alleged infringing product.
That is to say, from the perspective of ordinary consumers, the design of patented products and the design of accused infringing products are observed and judged as a whole. After comparison, the following three results may appear:
(1) If the design of the product accused of infringement is exactly the same as this patent, it shall be deemed that the former belongs to the protection scope of the patent right, 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 the 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.
Legal basis:
Article 64 of the Patent Law of People's Republic of China (PRC) The scope of protection of the patent right for invention or utility model shall be subject to the content of the claim, and the content of the claim may be illustrated by the specification and attached drawings. The protection scope of the patent right of design shall be subject to the design of the product shown in the picture or photograph, and the brief description can be used to explain the design of the product shown in the picture or photograph.