1. Determine the protection scope of the design patent. The scope of protection shall be subject to the patented product of design shown in pictures or photographs.
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;
Legal basis: People's Republic of China (PRC) Patent Law.
Article 2 Inventions and creations mentioned in this Law refer to inventions, utility models and designs.
Invention refers to a new technical scheme proposed for a product, method or its improvement.
Utility model refers to a new practical technical scheme for the shape, structure or combination of products.
Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial application, which is made on the shape, pattern or their combination of products and all or part of the combination of colors, shapes and patterns.
Article 59 A unit or individual that applies for compulsory license in accordance with the provisions of Article 53, paragraph 1 and Article 56 of this Law shall provide evidence to prove that it requested the patentee to license it to exploit the patent under reasonable conditions, but failed to obtain the license within a reasonable time.
The Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Disputes.
Article 8 Where a design identical with or similar to an authorized design is used on a product identical with or similar to a patented design product, the people's court shall determine that the alleged infringing design belongs to the protection scope of the design patent right stipulated in the second paragraph of Article 59 of the Patent Law.
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 according to 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.