1. If Party B fails to apply for a patent, according to the provisions of Paragraph 2 of Article 11 and Paragraph 2 of Article 56 of the Patent Law of People's Republic of China (PRC):
Paragraph 2 of article 1 1:
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.
Paragraph 2 of Article 56:
The scope of protection of the patent right of design shall be subject to the patented product of design shown in pictures or photographs.
You can sue the other party for infringement according to the patent law.
Second, as you said, B imitated A's design, applied for a patent and obtained authorization. This is because our country's appearance examination system is a preliminary examination system, that is, no search. As long as it meets some specific requirements and examination standards of appearance application, it will be the first choice. Of course, whether it really has patent effect depends on whether it conflicts with prior legal rights.
According to Article 23 of the Patent Law:
Article 23. The design for which the patent right has been granted shall be different from or similar to the design that has been published in domestic and foreign publications or publicly used in China before the application date, and shall not conflict with the legal rights previously obtained by others.
Then if the filing date of B is after A, and the design of A is greatly imitated, then according to the provisions of Article 23 of the Patent Law, B's patent can be declared invalid.
Determination of design infringement
Generally speaking, there are several ways to judge the infringement of design patents: direct comparison method
The direct comparison method includes two aspects. First of all, the accused infringing products are directly compared with the pictures or photos of patents. When adopting this method, we should pay special attention to the poor visual effect, especially the patent pictures with strokes are different from the visual effect of the products. The difference in visual effects of these pictures cannot be regarded as the difference between this patent and the alleged infringing products. The second is to directly compare the patented product of design produced by the patentee or licensee with the accused infringing product. This comparison has the best effect and is the easiest to judge whether it is the same or similar. However, attention should be paid to whether the products produced by the patentee or licensee are exactly the same as the pictures or photos at the time of patent application. Many enterprises constantly improve their product design after applying for patents, and the products actually produced are often different from those when applying for patents. Therefore, when comparing products directly, the differences or changes should be eliminated from the patent documents, because the patent protection scope of design is based on the pictures or photos in the application approval documents.
Cross contrast method
Cross-contrast method is generally more suitable for design patents closely related to well-known public products. In real life, many product designers always design products on the basis of existing well-known public products. When several people or enterprises carry out new innovative design with reference to a product, the products designed later are always more or less the same as or similar to the previously known public products. In this case, we should make a cross comparison to judge whether other people's products constitute infringement. The specific method is to compare the accused infringing products with the known public products, and then compare them with the patented products. If the accused infringing product is closer to the patented product, it generally constitutes infringement; if it is closer to the known public product, it does not constitute infringement. Through this cross-comparison, we can eliminate the similarities caused by well-known public products. Otherwise, it is unfair to the accused infringer, and it is likely to expand the design scope of the non-patentee to its protection scope in disguise.
Perspective contrast method
Perspective comparison refers to comparing the similarities and differences between patents and accused infringing products from different angles. The view of appearance patent usually has six sides. If the other side of symmetry is the same, one side can be omitted, and the bottom or back that is not easy to see in actual use can also be omitted. So some graphs may have only four or five sides. When comparing differences, look at the front view first, and then compare the side view or top view. Generally speaking, it is not very important for many products to look down and up, but for smaller products, such as toy pistols, all views are easy to see, and often there is no owner, so we should comprehensively judge their similarities and differences from all angles.
For some transparent or translucent products, we should also pay attention to the visual effect in the transparent state. The appearance and shape are the same, but the visual effect of the fully transparent design adopted by another product may be very different, which makes it difficult to confuse and distinguish two products with the same shape, so it is not easy to make the same judgment at this time.
We should also pay attention to the visual contrast effect of various changing States of some products in use, and we can't judge the infringement only by the approximation in one state.
In addition, it can also be compared from the design point of appearance design, which is often a unique innovation. If the design points are the same or similar, but there is no obvious difference in the rest, it shall be deemed as infringement.
When judging whether a design product is infringing, we should observe and compare it from multiple angles, and finally comprehensively judge whether it is the same or similar.
Identification of ordinary consumers in the determination of design patent infringement
Abstract: In the process of judging the infringement of design patent, the establishment of infringement perspective is of great significance to the determination of infringement. The author thinks that when judging the infringement of design, we should start from the perspective of ordinary consumers, who should have a specific meaning when judging the infringement of design, which is different from the general meaning.
Keywords: ordinary consumers, design, infringement
In the process of judging the infringement of design patent, it is a very important question to judge whether the accused infringing product is the same or similar to the design patent from the perspective of what kind of person. Different angles will lead to different judgment results. Therefore, the determination of the perspective of infringement is a matter of great concern to both the accused infringer and the patentee of design.
First, the reasons for establishing the perspective of ordinary consumers
In China's judicial practice, it is mainly inclined to see whether the accused infringing product is the same or similar to the design patent from the perspective of ordinary consumers. The method of judging design patent infringement from the perspective of ordinary consumers can be traced back to the case of Gorham Company v. White in 187 1. In this case, the Supreme Court of the United States held that it was incorrect for lower courts to judge patent infringement from the perspective of an ordinary observer. The judges of our court believe that when judging whether the products are similar or not with the eyes of professionals, they will find that the accused infringing products can not be consistent with the patented products in every detail, and professionals can easily distinguish the differences, so counterfeiting will not occur, which is contrary to the original purpose of Congress to legislate to protect design patents. The lower court determines whether it is the same or similar through the eyes of professionals, which makes it difficult for some designs to be effectively protected. Therefore, the judgment of similarity should be from the perspective of ordinary observers.
In fact, judging the infringement from the perspective of ordinary consumers can protect the rights of design owners well. Generally speaking, because the products accused of infringement are rarely identical or similar to patents, if we judge from the perspective of professionals, it is easy to see the difference between the two products because of their high level of professional knowledge, then most of the infringements will not occur in the market. But the real consumers in the market are ordinary consumers, not professionals, so that counterfeiting will not happen in the market, which is extremely unfavorable to the patentee of design. Therefore, judging whether it is the same or similar from the perspective of ordinary consumers can truly balance the interests between the patentee and the public.
Second, the determination of ordinary consumers.
When an infringement dispute occurs, the people's court, as an ordinary consumer, mainly pays attention to the similarity between the accused infringing product and the design patent when determining whether they are the same or similar, instead of paying attention to the difference between the applied design and the known design when examining the authorization. In the infringement judgment, when the accused infringing products confuse consumers' sight, make them make mistakes and buy them by mistake, they can be considered as infringement. Therefore, the author believes that when judging the infringement of design patents, that is, judging whether the products accused of infringement are the same or similar to those of design patents, the starting point should be the perspective of ordinary consumers, rather than the perspective of professional and technical personnel in the field of design patents. However, when determining the average consumer, we should pay attention to the following questions:
First of all, it is necessary to clarify the true meaning of ordinary consumers. The authoritative African American Law Dictionary defines consumers as: "Consumers are people who are different from manufacturers, wholesalers and retailers, and refer to individuals who buy, use, preserve and dispose of goods and services or users of final products". The Oxford Law Dictionary also believes that consumers refer to "people who buy, obtain and use all kinds of goods and services (including housing)". Consumers are different from manufacturers at first, but in the field of commodity trading, consumers are different from businessmen. [2] Therefore, in the market, consumers refer to people who buy or use goods for non-profit purposes. They don't ask whether they buy or use goods for their own consumption or keep or give them away. In the determination of design patent infringement, such consumers should have the following characteristics:
(1) Knowledge level and cognitive ability. The average consumer's knowledge level and cognitive ability are average, and he can recognize the shape, pattern and color of products. He has a common sense understanding of the comparison between the appearance design of the same or similar products and the designed products.
(2) Factors not considered. When purchasing a comparative design product, the average consumer only takes the elements of the comparative design product as the factor to identify whether it is the same product, and does not pay attention to and distinguish other elements contained in other products. He will not pay attention to and distinguish the design part of the product without obvious characteristics. The method of design conception, the designer's idea and the meaning of the theme and words used in the product pattern are not the factors considered by ordinary consumers. Secondly, it is necessary to determine the specific consumer groups of products. Ordinary consumers refer to a consumer group, and different consumers and user groups often have different understandings and visual impressions of product designs in different fields. In other words, not all product designs are judged by a group or random individuals.
[3] In some cases, the ordinary consumers of products are the general public. For example, for a product, if anyone is likely to become its potential consumer, then these consumers are the public, without any restrictions. In other words, products are unlikely to be distributed among consumers. For example, a water cup, anyone can be its potential consumer. Generally, consumers don't need professional knowledge to buy water cups, but they only need general knowledge and ability. Although in real life, some consumers may not buy or use these products directly, this does not prevent us from including them in the scope of ordinary consumers.
[4] However, for some products, the product is not to satisfy the general public, it is only useful to some consumers. For example, the use of a lathe, its consumers can only be factories and other enterprises. When a factory needs to buy a lathe, it will definitely buy it for people with certain professional knowledge, and will not send ordinary employees who don't understand lathes to buy it. When it is used, it can only be operated by people with certain lathe skills. Therefore, for products such as lathes, consumers can be divided among consumers, not the general public, without any restrictions, but consumers need to have certain professional knowledge. At this time, the existence of professional knowledge determines who is a qualified consumer.
[5] Therefore, in the event of infringement, we must first confirm the qualified consumers and see if this product has certain requirements for consumers. When this product requires consumers to have certain professional knowledge, when determining the perspective of judging similarity, qualified consumers should be selected based on the presence or absence of professional knowledge. Although judging the infringement from their eyes is much stricter than judging the similarity by randomly selected consumers, it is indeed fair. Because the design of some products is not very different for people without professional knowledge, but it is quite different for people with certain professional knowledge. Of course, when determining whether it is the same or similar, it should still be based on the eyes of ordinary technicians with professional knowledge.
Third, ordinary consumers should generally pay attention to judgment. Whether consumers pay general attention or special attention in the process of judgment also has a great influence on the result of infringement judgment. In the case of gorham co v. white, the Supreme Court of the United States held that, from the point of view of ordinary observers, in view of the attention usually paid when purchasing products, the compared designs are considered to be basically the same as the patented designs. If this similarity deceives such an observer and induces him to buy what he thinks is another product, then the second design constitutes an infringement of the first design. [6] That is to say, in the United States, only when observers draw similar conclusions that are generally concerned can they be used as the basis for infringement judgment.
Under the general concern, when distinguishing the appearance of a product, ordinary consumers will not leave a visual impression on the appearance of parts that are not easy to see when using, and the appearance and element design of parts that have no general aesthetic significance. He will not notice the subtle changes in the shape, pattern and color of the product, but will mainly focus on the obvious parts of the design features. When ordinary consumers generally pay attention, if consumers can't distinguish the accused infringing products from the products shown in patent pictures or photos, it means that the actual confusion has been caused and the infringement should be established.
As mentioned above, in the practice of the United States and China, whether infringement is established is judged from the perspective of ordinary consumers (ordinary observers in the United States). When ordinary consumers generally pay attention, they mistakenly regard one product as another, which means that the accused infringing product confuses consumers' sight, so that they can't distinguish between the two, and the infringement can be established.