Xiaomi 8, the latest release of Xiaomi mobile phone, is very similar to iPhoneX in design elements such as "Liu Haiping" on the front, "vertical camera" on the back and layout of function buttons on the right.
So, does Xiaomi 8 infringe on the design of iPhoneX?
According to Article 62 of the Patent Law, "in a patent infringement dispute, if the accused infringer has evidence to prove that the technology or design he implemented belongs to the existing technology or design, it does not constitute patent infringement."
When judging whether there is infringement, one factor to be considered is the size of the design space. According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Patent Infringement Disputes (II), if there is a large design space, the people's court may conclude that ordinary consumers usually do not easily notice the subtle differences between different designs; If the design space is small, the people's court may conclude that ordinary consumers are usually more likely to notice small differences between different designs.
Therefore, once Xiaomi is sued by Apple for patent infringement, whether Xiaomi 8 will be convicted of infringing the design of iPhoneX depends on three factors: First, whether Xiaomi can prove that all design elements and combinations of Xiaomi 8 are based on the existing design; Second, can Xiaomi prove that the layout design of Xiaomi 8 in Liu Haiping and the rear vertical camera belongs to the category of small design space; Third, whether Xiaomi can abolish the design patent of iPhoneX through the patent invalidation procedure.