The following changes to the design patent shall not be regarded as infringement: 1. Determining the scope of protection of a design patent According to the provisions of the second paragraph of Article 59 of the Patent Law, the scope of protection shall be based on the pictures or products patented in the photos submitted by the design patentee to the Patent Office when applying for a design patent, including front view, top view and side view. Secondly, determine whether the patented product of design and the infringing product belong to the same or similar goods. If the two are different in function and use, it can be concluded that they are neither the same commodity nor similar commodities, and patent infringement is not established. Third, 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. After comparison, the following three results may appear: (1) If the appearance design of the product accused of infringement is exactly the same as the patent, the former is considered to be within the scope of patent protection and the patent infringement is established; (2) The design of the accused infringing product is basically the same as the patent design in the main part, and the whole is similar. According to the principle of equivalence, the patent infringement may be established; (3) If the design of the accused infringing product is neither the same nor similar to the design of this patent as a whole, it is deemed that the accused infringing product has not fallen into the protection scope of the patent right, and the patent infringement is not established.
legal ground
Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Patent Infringement Disputes.
When determining whether the designs are the same or similar, the people's court shall make a comprehensive judgment according to the design features of the authorized design and the accused infringing design and the overall visual effect of the design; Design features mainly determined by technical functions, and features such as materials and internal structures that have no influence on the overall visual effect of products should not be considered.