How to avoid appearance infringement

According to the relevant provisions of China's patent law, patents can be divided into invention patents, utility model patents and Design patents. Nowadays, no matter what kind of products, attention is paid to appearance packaging, then in terms of appearance patents, it is easy to constitute infringement. So, how to avoid appearance infringement? What are the ways in which appearance patents are infringed? Follow the editor of Hualu to learn more Just give it a try.

1. How to avoid appearance infringement

How to avoid appearance infringement: p>

1. Determine the scope of protection of design patent rights. The scope of protection of a design patent shall be based on the pictures or photos of the design patented product submitted by the patentee to the State Intellectual Property Office when applying for a design patent, including front view, top view, side view, etc.

2. Determine whether the design patent product and the infringing product are the same or similar goods. The identification method in judicial practice usually takes the function and use of the product as the standard, and also refers to the classification of relevant goods in the International Design Classification Table.

3. Compare the design patent with the product accused of infringement. That is, from the perspective of ordinary consumers, the key parts of the patented design and the design of the product accused of infringement are observed and judged as a whole.

Legal basis:

Article 11 of the Patent Law of the People's Republic of China

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After the design patent right is granted, no unit or individual may exploit the patent without the permission of the patentee, that is, it may not manufacture or offer for sale for production and business purposes. , sell and import its design patented products.

Article 59 of the Patent Law of the People's Republic of China

Invention or utility model The scope of protection of a patent right shall be determined by the content of the claims, and the description and drawings may be used to explain the content of the claims. The scope of protection of a design patent right is based on the design of the product shown in the picture or photo. A brief description can be used to explain the design of the product shown in the picture or photo.

2. Comparison method of appearance patent infringement

The first method is to observe with the naked eye to determine whether the product is the same or similar to the product for which the design patent has been applied. The judgment should be based on whether consumers can be confused by normal observation with the naked eye. For Those parts that are not easily observed visually cannot be compared with the help of joint or chemical means. When observing, the similarities and differences should also be judged from the parts of the product that are easily visible.

The second method is to observe in isolation. Products with design patents and products that are considered to have caused infringement are placed separately. When observing, it is necessary to observe in two aspects: time and space. There is a certain interval between the two products, and then the judges are allowed to observe the two products to form a first impression. Then the two products are placed together, and the judges wait for the judges to observe again and make a comparative analysis, and finally draw a conclusion.

The third method is to observe the overall situation and then make a comprehensive judgment. Generally speaking, it is necessary to judge whether a product is the same as a product that has obtained a design patent or whether it is the same or not. It is similar. We cannot just look at a certain part of the appearance, nor can we separate all aspects of the appearance design. Instead, we should observe it as a whole, and conduct an overall observation of all the elements of the two products, and then compare them. Based on this observation, a comprehensive judgment is made on the appearance designs of the two products.

Relevant legal basis:

Article 11 of the Patent Law of the People's Republic of China

After the design patent right is granted, any unit or individual without the patent Without the permission of the right holder, the patent shall not be exploited, that is, the patented design product shall not be manufactured, offered for sale, sold, or imported for production and business purposes.

"People's Republic of China Article 59 of the Patent Law of the Republic

The scope of protection of invention or utility model patent rights shall be based on the content of the claims. The description and drawings may be used To explain the content of the claims. The scope of protection of design patent rights shall be based on the design of the product shown in the pictures or photos, and the brief description can be used to explain the design of the product shown in the pictures or photos.

The above is a detailed introduction by the editor of Hualu to you on how to avoid appearance infringement. To avoid infringement, you should determine the protection scope of the design patent right. You also need to determine whether the product that infringes the design patent is the same or similar product, and then Compare the design patents of products accused of infringement. If you have any legal issues, it is recommended to consult a professional Hualu lawyer.