Legal basis:
According to Article 1 1 of the Patent Law:
After the patent right for invention and utility model is granted, except as otherwise provided in this Law, no unit or individual may exploit the patent without the permission of the patentee, that is, it may not manufacture, use, promise to sell, sell or import the patented product for production and business purposes, nor may it use the patented method and use, promise to sell, sell or import the product directly obtained according to the patented method.
After the design patent is granted, no unit or individual may exploit the patent without the permission of the patentee, that is, may not manufacture, sell or import its patented products for production and business purposes.
Extended data:
Tort judgment
The theme of comparison
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 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.
The above-mentioned general consumers refer to those who buy and use patented products of design. In general, the meaning of "consumer" in the Consumer Protection Law is the same.
However, for unusual consumer goods, such as building materials, machine parts, power tools, etc. Ordinary consumers are not their buyers and do not have the general knowledge and cognitive ability of such goods. Therefore, the subject who can make the same or similar comparison should be the specific consumer group of this kind of goods, that is, the people who sell, buy, install and use this kind of goods.
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 law
Generally, the following methods are used to determine whether the designs are the same or similar:
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.
2. Observe in isolation and compare directly.
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, which is the first 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.
3. Overall observation and comprehensive judgment.
To judge whether the appearance design of the accused infringing product is the same as or similar to that of the patented product, we should not only start from the local design, or separate the various parts of the appearance design, but also start from the whole, observe all its elements as a whole, and make a comprehensive judgment on the main components and innovations of the appearance design of the two products on the basis of the overall observation.
Baidu Encyclopedia-People's Republic of China (PRC) Patent Law