Design patent infringement dispute cases

Discussion on Several Issues in Design Patent Infringement Dispute Cases Author: Shen *xiang, Municipal Intermediate Court The inventions and creations protected in my country include inventions, utility models and designs. Design products are first and foremost industrial products, and at the same time win the market through aesthetic decorative effects. Therefore, they are essentially intellectual creations that combine technology and art. Design patents account for a large proportion of the number of patents in my country. Our province is a major province in the application and authorization of design patents. Correspondingly, at the judicial level, design patent infringement disputes also account for a considerable proportion of patent infringement dispute cases. . However, since the Patent Law and its implementing rules and the judicial interpretations of the Supreme People's Court have relatively principled provisions on design patent protection, there are few detailed provisions that can be applied to specific cases. Therefore, different courts often have different rules for similar cases. Different fact finding and adjudication results.

The issue of determining the scope of protection of a design patent. Determining the scope of protection of a design patent is a prerequisite for determining infringement. According to the provisions of the Patent Law (the third revision on December 27, 2008), the scope of protection of design patent rights shall be based on the design patented product shown in pictures or photos. It can be seen that the patent law does not require the patentee to submit claims expressed in words when applying for authorization, so designs do not have claims compared with inventions and utility models. In judicial practice, if the protection scope of the patentee's design patented product is expressed in the form of photos, there will generally be no conflicting or erroneous views. However, if the patentee's patented product is an industrial product that is small in size and has complex and changeable shapes, and the patent drawings are not drawn using CAD or other methods, sometimes there will be conflicts or inconsistent expressions in the patented drawings. The accused infringer may also argue that errors in the patent drawings lead to non-unique appearance of the product, thereby affecting the determination of infringement. When encountering such problems, the author believes that various views should be combined to determine whether the shape of the design product can be determined, that is, whether it is unique. If an error in one view can be corrected in other views and the design of that part can still be determined by combining all views, it should be regarded as a flaw in the drawing. Because the views in the design patent gazette are general schematic diagrams that reflect the shape, pattern, or combination of the product, rather than strict product design or production drawings. Therefore, when there are errors in the design patent drawings, as long as the overall shape of the product can still be determined by combining the information disclosed in each view, it does not affect the ability of those of ordinary skill in the art to clearly, completely and uniquely understand and determine the design product. If it is not enough to make it impossible to determine the overall shape of the product and therefore not suitable for industrial applications, the patent drawings can still be used as comparative documents to determine whether infringement has occurred. If the alleged infringer challenges the validity of the patent on this basis during the trial,, the court hearing the case should explain it and inform it that it can submit a request for invalidation to the Patent Reexamination Board of the State Office on this issue. The People's Court shall adhere to the principle of validity of patent rights in infringement proceedings and shall not evaluate patentability. Courts that accept infringement cases do not have the authority to resolve the validity of patents in infringement proceedings.