Is the appearance patent infringing?

Legal analysis: 1. Determining the scope of protection of a design patent According to the second paragraph of Article 59 of the Patent Law, the scope of protection shall be based on the pictures or products in the photos submitted by the patentee of a design to the Patent Office when applying for a design patent, 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. 2. In judicial practice, the method to determine whether the patented product of design and the infringing product belong to the same or similar goods is usually based on the function and use of the product and referring to the commodity classification in the international design classification table. 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. 3. Compare the design patent with the accused infringing product, that is, observe the patented design and the accused infringing product from the perspective of ordinary consumers and make an overall judgment. The term "design" as mentioned in Article 2 of the Detailed Rules for the Implementation of the Patent Law of People's Republic of China (PRC) refers to a new design that is aesthetically pleasing and suitable for industrial application for the shape, pattern, color or their combination of products. The protection scope of Article 59 of the Patent Law of People's Republic of China (PRC) shall be subject to 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.

Legal basis: People's Republic of China (PRC) Patent Law.

Article 60 The patent administration department in the State Council shall promptly notify the patentee of the decision to grant a compulsory license for exploitation, and register and announce it. The decision to grant compulsory license shall stipulate the scope and time of implementation according to the reasons for compulsory license. When the reasons for compulsory license are eliminated and no longer exist, the administrative department for patent in the State Council shall, at the request of the patentee, make a decision to terminate the compulsory license after examination.

Article 63 If the patentee refuses to accept the decision of the patent administrative department of the State Council on compulsory license, and if the patentee and the unit or individual that obtained the compulsory license refuse to accept the decision of the patent administrative department of the State Council on compulsory license fee, they may bring a lawsuit to the people's court within three months from the date of receiving the notice.

Article 65 Where a patent is exploited without the permission of the patentee, that is, the patent right is infringed and a dispute arises, the parties concerned shall settle it through consultation; Unwilling to negotiate or failing to do so, the patentee or interested party may bring a suit in a people's court or request the administrative department for patent affairs to handle it. When the administrative department for patent affairs finds that the infringement is established, it may order the infringer to stop the infringement immediately. If a party refuses to accept the decision, he may bring a lawsuit to the people's court in accordance with the Administrative Procedure Law of the People's Republic of China within 15 days from the date of receiving the notice of handling. If the infringer fails to prosecute and stop the infringement upon expiration of the time limit, the administrative department for patent affairs may apply to the people's court for compulsory execution. At the request of the parties concerned, the administrative department for patent affairs may mediate the amount of compensation for patent infringement; If mediation fails, the parties may bring a lawsuit to the people's court in accordance with the Civil Procedure Law of People's Republic of China (PRC).