Design, according to the third paragraph of Article 2 of the Detailed Rules for the Implementation of the Patent Law, refers to a new design which is aesthetically pleasing and suitable for industrial application for the shape, pattern, color or their combination of products. There are three steps to determine the design patent infringement:
First, determine the scope of protection of the patent right of design.
According to the second paragraph of Article 59 of the Patent Law, the scope of protection shall be based on the pictures or photographs of the patented product of design submitted by the patentee of design to the Patent Office when applying for a patent for design, including front view, top view and side view. Among them, the front view is the most important, because it can best reflect the beauty of design. When determining the protection scope of the patent right of design, we should also pay attention to finding out the elements that can reflect the aesthetic feeling of design from these views.
The scope of protection of design patent is obviously different from that of invention or utility model patent. The former is an aesthetic appearance that people can see visually, and the latter is a technical conception or technical scheme that conforms to patentability.
Two, to determine whether the patented product of design and the infringing product belong to the same or similar goods.
In judicial practice, the identification method is usually based on the function and use of the product, and at the same time refers to the classification of goods in the International Classification of Designs (namely the Locarno Treaty). If the patented product of design and the alleged infringing product are the same in function and use, they can be identified as the same or similar goods, and continue to compare in point 3 below. If they are different in function and use, we can conclude that they are neither the same goods nor similar goods, and then we can end our infringement judgment step and conclude that patent infringement is not established.
Third, compare the design patent with the accused 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 that of this patent, it is considered 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 this 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.