In practice, judging the design patent infringement generally requires the following three steps:
1, to determine the scope of protection of design patents.
According to the second paragraph of Article 59 of the Patent Law, 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.
It is usually based on the function and use of the product, and at the same time, it refers to the classification of goods in the International Classification of Designs (namely the Locarno Treaty).
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, we can conclude that they are both the same and not similar, so patent infringement will not be established.
3. Compare the design patent with the accused infringing product, and judge the patent design and the accused infringing product as a whole from the perspective of ordinary consumers.
Article 59 of the Patent Law of People's Republic of China (PRC) The scope of protection of the patent right for invention or utility model shall be subject to the content of the claim, and the description and drawings may be used to illustrate the content of the claim.
The protection scope of the patent right of design shall be subject to the design of the product shown in the picture or photograph, and the brief description can be used to explain the design of the product shown in the picture or photograph.