What should be the scope of protection of design patent right?

Legal analysis: 1. When trying a dispute case of infringing the patent right of design, we must first determine the scope of patent protection. The scope of patent protection for design shall be subject to the design of patented products shown in pictures or photographs. A brief description of the design and its design points, the opinions of the patentee in the invalid procedure and its litigation procedure, and the samples or models submitted in accordance with the requirements of the patent administration department of the State Council in the patent application procedure. It can be used to explain the scope of patent protection for design.

2. When determining the scope of protection, you can consider the relevant evidence submitted by the parties to prove the development and change of the patented product design.

3. When determining the scope of patent protection for design, we should distinguish between the reference drawing of use state and the view of use state of products in a changing state.

The reference chart of use status is the view when the patent administrative department of the State Council requires the patent applicant to provide the correct classification of newly developed products whose use methods, uses or functions are not specified in the brief description, or some products with unclear use methods, uses or functions cannot be classified. Service state reference diagram can not be used to determine the protection scope of design, but it can be used as a factor to determine the product category. The use state view of products in a changing state should be used as the basis for determining the scope of product design protection.

4. Where the patent right for design requests protection of color, the color requested for protection shall be regarded as one of the elements to determine the protection scope of the patent right for design, that is, in the infringement judgment, the shape, pattern, color and their combination shall be comprehensively compared with the corresponding shape, pattern, color and their combination of the accused infringing product.

5. Where the patent right for a design requests to protect the color, the patentee shall submit relevant evidence issued or recognized by the patent administration department of the State Council to determine the protection scope of the design. When necessary, it shall be checked with the colors in the patent examination file of the State Council Patent Administration Department.

6. The product size, material and internal structure that have no influence on the overall visual effect are not within the scope of patent protection for design.

7. The scope of protection of the patent right for similar designs shall be determined by each independent design. Basic design and other similar designs can be used as the basis for determining the scope of patent protection for design.

Legal basis: 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 is subject to the content of the claim, and the content of the claim can be explained by the specification and attached drawings.