35, design patent infringement judgment, should first review whether the accused infringing products and patented products belong to the same product. If it does not belong to similar products, it does not constitute an infringement of the patent right of design.
36. When examining whether a patented product of design and an infringing product belong to the same category, we should refer to the classification table of design and consider the objective and actual situation of commodity sales to determine whether they belong to the same category.
37. Product similarity is the premise of judging the patent infringement of design, but it does not rule out that under special circumstances, designs between similar products can also be judged as infringement.
38. 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 standard should be the aesthetic observation ability of ordinary consumers, not the aesthetic observation ability of professional and technical personnel in the field of design patents.
39. As a special consumer group, ordinary consumers refer to the buyers or users of similar products or similar products with design patents.
40. Comparing the design of the accused infringing product with the design of the patented product, we should make overall observation and comprehensive judgment to see whether they have the same aesthetic feeling; The comparison should focus on the main aesthetic design part (essential part) created by the patentee and the corresponding part of the accused infringing product to see whether the defendant copied or imitated the original part of the plaintiff.
4 1. In the case that both the plaintiff and the defendant have already obtained and implemented the design patent right, if the two designs are the same or similar, it can be concluded that the act of obtaining the design patent right later infringes the design patent right obtained earlier.
42. The principle of equivalence adopted in judging the patent infringement of invention or utility model does not apply to judging the patent infringement of design.
(3) identical and similar marks
43. It should be compared whether the design of the patented product and the design of the accused infringing product constitute the same or similar:
(1) If the main design parts (key parts) such as shapes, patterns and colors are the same, it shall be deemed as the same design;
(2) If the main design parts (main parts) in the constituent elements are the same or similar, and the minor parts are different, it shall be deemed as approximate design;
(3) If the main design parts (main components) of the two are different or similar, they should be considered as different or similar designs.
44. The size, materials, internal structure and performance of the patented product and the alleged infringing product shall not be used as the basis for judging whether they are the same or similar.
45. For a design that needs color protection, it should be determined whether the shape of the design belongs to a well-known design. If it is well-known, it should only be judged by its pattern and color; If the shape, pattern and color are all new designs, we should judge them by combining them.
Judge Storey in the United States once said: "Compared with any other type of cases debated by the court, the protection methods of patents and copyrights are closer to what can be called legal metaphysics, but the difference is that, or at least, they are unfathomable, elusive and sometimes fleeting." Judge Storey's words vividly revealed the complexity of the determination of intellectual property infringement. Among all kinds of intellectual property disputes accepted by the court, intellectual property infringement cases account for a considerable proportion and are difficult to hear. In view of the obvious differences between the theory of intellectual property infringement and the traditional theory of civil infringement, there are great differences in the understanding and application of the law and the judgments of intellectual property infringement cases among courts. Under this premise, it is necessary for judicial practitioners to explore the adjudication rules of intellectual property infringement cases on the basis of summarizing the precedents of various intellectual property infringement cases, so as to guide judicial practice. This paper aims at comparing intellectual property infringement with ordinary civil infringement, and combining with trial practice, summarizes the same rules for judging intellectual property infringement.