Guide to the determination of patent infringement; Determination of infringement of patent right of design

70. Where a design identical with or similar to an authorized design is used on a product identical with or similar to the design, it shall be deemed that the alleged infringing design belongs to the protection scope of the design patent. 7 1. When judging the design infringement, the pictures or photos indicating the design in the authorization announcement should be compared with the pictures or photos of the accused infringing design or the accused infringing design, instead of comparing the patented design products submitted by the patentee with the accused infringing design. However, the physical object of the patented product is completely consistent with the design product shown in the pictures or photographs in the patent announcement documents, or is completely consistent with the samples or models submitted by the patentee at the request of the patent administrative department of the State Council for a clearer understanding of the contents of the pictures or photographs in the patent application procedure, unless all parties have no objection. 72, design infringement judgment, should be directly observed and compared by the general consumer's vision, should not be compared by magnifying glass, microscope and other tools. However, if the product design shown in the picture or photo is enlarged when applying for a patent, the accused infringing product should also be enlarged and compared in the infringement comparison. 73. To judge the design infringement, we should first examine whether the accused infringing product and the design product belong to the same or similar products. 74. Whether the product types are the same or similar should be determined according to the purpose (use purpose and use state) of the designed product. When determining the use of a product, it can be comprehensively determined by referring to relevant factors in the following order: brief description of design, international design classification table, product function, product sales, actual use and other factors. If the purpose (purpose and use status) of the design product and the accused infringing design product are different, the design product and the accused infringing product do not belong to the same or similar products. 75, to determine whether the infringement of the patent right of design, should be based on whether it is the same or similar to the standard, rather than whether it constitutes a general consumer confusion, mistaken for the standard. 76. Whether the designs are the same or similar should be judged by the average consumer's knowledge level and cognitive ability of the patented product, not by the average designer's observation ability of the technical field to which the patent belongs. The average consumer is a hypothetical "person" and should be defined from two aspects: knowledge level and cognitive ability. The knowledge level of ordinary consumers means that they usually have a common sense understanding of the design of the same or similar products and their common design technology before the application date of the design patent. The cognitive ability of the average consumer means that he usually has a certain resolution on the differences in shape, pattern and color of the designed products, but he will not notice the subtle changes in shape, pattern and color of the products. When defining the knowledge level and cognitive ability of general consumers of design products, we should consider the design and development process of the design products before the application date for specific design products. 78. When judging whether the designs are the same or similar, the designer's subjective view should not be taken as the standard, but the visual effect of ordinary consumers should be taken as the standard. 79. When judging whether the designs are the same or similar, the principle is overall observation and comprehensive judgment, that is, all the design features of the authorized design and the visual part of the accused infringing design should be observed, and all factors that can affect the overall visual effect of the product design should be comprehensively considered before making a judgment. The following conditions usually have a great influence on the overall visual effect of the design: (1) The part that is easy to be directly observed during normal use of the product is relative to other parts; (2) The design is different from other design features of the existing design. 80. If there is no difference in the overall visual effect between the accused infringing design and the authorized design, it shall be regarded as the same; If there is no substantial difference in the overall visual effect, they should be considered similar. Specifically: (1) If there is no difference in overall visual effects such as shape, pattern and color. , they should be considered the same; (2) If their overall visual effects are not exactly the same, but there is no obvious difference, they should be considered similar; (3) If the overall visual effects of the two are different in shape, pattern and color, and there are obvious differences, they should be considered as different rather than similar. 8 1. When judging the same or similar, the design features determined by product functions and technical effects will not be considered. Design features determined by product functions and technical effects refer to limited or unique designs that realize product functions and technical effects. 82. For the appearance design of three-dimensional products, the shape usually has a greater influence on the overall visual effect. When judging the similarity, we should focus on the shape; But if its shape belongs to the usual design, patterns and colors have a greater impact on the overall visual effect. Customary design refers to the corresponding design that ordinary consumers are familiar with and can think of as long as the product name is mentioned. 83. For the appearance design of flat products, patterns and colors usually have a greater impact on the overall visual effect. When judging similarity, we should focus on patterns and colors. 84. For the appearance design that needs color protection, it should be determined whether the design belongs to habitual design. If it is a habitual design, it should only be judged from its pattern and color; If the shape, pattern and color are all new designs, it is necessary to judge the combination of shape, pattern and color. 85. Replacing opaque materials with transparent materials, or replacing transparent materials with opaque materials, only belongs to the transformation of material characteristics, and has not caused obvious changes in product appearance design, which will not be considered when judging the similarity of appearance design. However, if transparent materials change the aesthetic feeling of product design and lead to changes in the overall vision of ordinary consumers, they should be considered. The product accused of infringement replaces opaque materials with transparent materials, and the internal structure of the product can be observed through transparent materials, so the internal structure should be regarded as a part of product design. 86. Both the patentee and the accused infringer have been authorized to apply for a patent for design, and the patentee's application date for a patent for design is earlier than that of the accused infringer. If the design of the accused infringer is the same as or similar to the design of the patentee, it can be concluded that the accused infringer's act of implementing his design patent infringes the prior design patent.