The scope of protection of design patents is based on design drawings or photos.
What is the function of appearance patent?
Let me give you an analogy.
The design patent has been recognized by consumers. If the patents of new products in furniture industry are declared in time, then their designs will enjoy exclusive rights. When consumers buy furniture, they often choose products with fashionable and beautiful appearance. If consumers spend a lot of money on a brand of furniture, they will feel uncomfortable when they find that the products of other companies have the same design but different texture.
Legally monopolize, prohibit others from producing and selling the same products as you, or you will cause your own losses and realize the interests of others.
It would be a tragedy if someone else applied for the appearance first and prohibited you from producing and selling, so you should apply for a patent before the product is designed for sale or exhibition, otherwise you will lose yourself.
What is the scope of protection of appearance patent?
A brief description of the design can be used to understand the protection scope of the design.
In an infringement lawsuit, the patentee of a design shall submit a "design sketch" of its design, explaining the original part and content of its design protection; If the patentee has submitted the "Outline of Design" to the China Patent Office when applying for a patent for design, the patent document can be used as evidence for identifying the outline of design.
Where a patent right for a design requests protection of color, the obligee shall provide relevant evidence recognized by the China Patent Office to determine the scope of protection of the design. When necessary, the court shall check the color content in the archives of China Patent Office. 59. Where the patent right for design requests protection of color, the color requested for protection should be regarded as one of the elements limiting the protection scope of the patent right for design, that is, in the infringement judgment, the shapes, patterns, colors and their combinations contained therein should be compared with those of the accused infringing product one by one.
The scope of protection of the patent right for design shall not be extended to the known design content that existed before the application date or priority date of the patent for design.
The scope of protection of the patent right of design should exclude the design content that only plays the role of function and effect, but consumers can't see it in normal use or has no aesthetic effect on the product.
What is the difference between the subject of protection of appearance patent and copyright?
What's the difference between copyright and patent right?
Patent right refers to the exclusive right enjoyed by the patentee for his invention, utility model and design according to law. The main differences between copyright and patent right are as follows:
(1) The protected objects are different. Copyright protects the expression of the author's thoughts, feelings and opinions, but not the content itself. These forms include novels, papers, movies, songs, pictures and so on. Patents protect inventions, which belong to the category of ideas, including inventions, utility models and designs, such as the invention of TV sets, the manufacturing method of light bulbs and the unique design of coca-cola bottle.
(2) The conditions and requirements of protection are different. According to the different objects of protection, the copyright law can protect two works with the same theme, as long as they are original; However, the patent right will not protect two inventions with the same theme. For example, A invented the TV set and applied for a patent, so B can no longer apply for this patent.
(3) The rights are generated in different ways. Copyright can usually be generated automatically without any registration or review procedures; The patent right must be granted to the legal applicant after being examined by a specific administrative organ of the state according to law.
(4) The content of rights is different. The contents of copyright include personal rights and property rights; However, the patent right only includes the content of property rights such as the right to implement, the right to license others to implement and the right to transfer, and does not include the content of personal rights.
(5) The term of rights protection is different. As mentioned above, the protection period of property rights of works is generally 50 years after the author's death; The protection period of the patent right is 20 years for the invention patent, and 10 years for the design and utility model respectively, counting from the date of application.
What's the difference between appearance patent and copyright?
On the whole, design patents belong to the category of patents, generally referring to design packaging. Copyright is an artistic achievement. The difference between the two is sorted out in the transfer of knowledge:
1. The concept is different: copyright is actually copyright, which refers to the rights enjoyed by the copyright owner according to law. A patent right is the right to enjoy an invented article according to law because of a specific invention.
2. Different subjects: the subject of copyright, also known as the copyright owner, refers to the person who enjoys copyright in literary, artistic and scientific works according to law. The subject of patent right is the patentee, that is, the person who enjoys the rights stipulated in the patent law and undertakes the obligations at the same time.
3. Different objects: The object of copyright is a work, which refers to an intellectual achievement that is original in the fields of literature, art and science and can be reproduced in some tangible form. Object of patent right: refers to inventions that meet the patent requirements, including inventions, utility models and designs. Invention is an intellectual labor.
On the Protection of Appearance Patent
The scope of protection of design is indeed somewhat narrow, but it cannot be said that it is of little significance.
1, in the case of real litigation, size modification also belongs to the scope of protection.
If you change the local shape, it depends on the size of the change. For example, if you apply for an appearance patent, it is a whole vehicle, and the other party just changes the tire pattern, which also constitutes infringement. Judging from the perspective of the whole car.
There are many human factors to judge whether an appearance patent is infringing. In litigation, if the judge thinks that the change is great, it is not approximate design and does not belong to infringement. If the judge thinks that the change is minor, it will be considered as a similar design and an infringement.
In addition:
The following is the Supreme People's Court's explanation on several issues concerning the application of law in the trial of patent infringement disputes. Please refer to.
Article 9 The people's court shall determine whether the product types are the same or similar according to the uses of the design products. To determine the use of a product, you can refer to the brief description of the design, the international design classification table, the function of the product, the sales and actual use of the product and other factors.
Article 10 The people's court shall judge whether the designs are identical or similar according to the knowledge level and cognitive ability of ordinary consumers of patented products.
Article 11 When determining whether the designs are identical or similar, the people's court shall make a comprehensive judgment based on the design features of the authorized design and the accused infringing design and the overall visual effect of the design; Design features mainly determined by technical functions, and features such as materials and internal structures that have no influence on the overall visual effect of products should not be considered.
The following conditions usually have a great influence on the overall visual effect of the design:
(1) The parts that are easily observed directly during normal use of the product are relative to other parts;
(2) The design features of the authorized design that are different from the existing design are relative to other design features of the authorized design.
If there is no difference in the overall visual effect between the accused infringing design and the authorized design, the people's court shall consider it the same; If there is no substantial difference in the overall visual effect, it should be considered that the two are similar.
What are the design points in the patent right of design?
Design point refers to the shape, pattern and combination of products different from the existing design, or the combination of color and shape, pattern or parts.
Appearance patent mainly protects the external graphics or patterns.
Appearance style, product modeling, what you said is also counted, but copyright is more meaningful if patterns are used.
How many years is the protection period of the design patent in China?
It is 10 year from the date when you apply for Li Hai. The postmark date shall prevail for paper applications and the electronic application date shall prevail for electronic applications.
Do appearance patents also protect colors?
Design patent is the object of patent right and the object of patent law protection, which refers to the design that should be granted patent right according to law. It is completely different from the invention or utility model, that is, the design is not a technical solution. Article 2 of China's Patent Law stipulates: "Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial application based on the shape, pattern or combination of products, as well as the combination of color and shape and pattern. Visible, the design patent shall meet the following requirements:
(1) refers to the design of shape, pattern, color or their combination;
(2) It must be the design of product appearance;
(3) it must be beautiful;
(4) It must be suitable for industrial application.