1, 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.
2. 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 patents should be based on the aesthetic observation ability of ordinary consumers, not on the aesthetic observation ability of professional and technical personnel in the field of design patents. For the same or similar products, if ordinary consumers generally pay attention to avoid confusion, it does not constitute infringement, and if ordinary consumers still pay attention to confusion, it constitutes infringement.
Article 42 of the Patent Law, the term of the invention patent right is 20 years, and the term of the utility model patent right and the design patent right is 10 years, counting from the date of application. Article 61 Where a patent infringement dispute involves an invention patent of a new product manufacturing method, the unit or individual that manufactures the same product shall provide proof that its product manufacturing method is different from the patented method. Where a patent infringement dispute involves a patent for utility model or a patent for design, the people's court or the administrative department for patent affairs may require the patentee or interested party to issue a patent evaluation report made by the patent administrative department of the State Council after searching, analyzing and evaluating the relevant utility model or design as evidence for hearing and handling the patent infringement dispute.