How to protect your rights if a design patent is infringed
Design Patents are the object of patent rights and the objects protected by patent law. They refer to designs for which patent rights should be granted according to law. It is completely different from an invention or utility model, that is, the appearance design is not a technical solution. Article 2 of China’s Patent Law stipulates: “Design refers to a new design that is aesthetically pleasing and suitable for industrial application based on the shape, pattern, or combination of the product, as well as the combination of color, shape, and pattern. It can be seen that , the design patent should meet the following requirements:
⑴ refers to the design of shape, pattern, color or their combination; the latest version of the design patent certificate⑵ must be The design of the product’s appearance;
(3) must be aesthetically pleasing;
(4) must be Suitable for industrial applications
Infringement judgment
p>The subject of comparison
Design patented products are compared to inventions For products that are more relevant to daily life than utility model patented products, ordinary consumers tend to ignore the subtle differences between some similar products, while professionals can easily distinguish them. When judging the difference between the alleged infringing product and the design When determining whether patented products are identical or similar, it is obviously unfair to the right holder from the perspective of professionals. Therefore, the judgment of design patent infringement should be based on the aesthetic observation ability of ordinary consumers. The aesthetic observation ability of professional and technical personnel in the field to which the design patent belongs should be used as the standard. For products of the same or similar category, if ordinary consumers pay ordinary attention to avoid confusion, it does not constitute infringement. If ordinary consumersIf confusion cannot be avoided by applying ordinary attention, it constitutes infringement.
The ordinary consumers mentioned above refer to those who purchase and use the patented design product. Under normal circumstances, ordinary consumers have the same meaning as “consumer” in the Consumer Rights Protection Act. However, for non-common consumer goods, such as building materials, machine parts, power tools, etc., ordinary consumers are not the purchasers and do not have general knowledge and cognitive abilities about such goods, so they can treat them the same or similar. The subject of comparison should be the specific consumer group of such products, that is, the people who sell, purchase, install and use such products.
Taking ordinary consumers as the subject of infringement determination does not require the People's Court to pursue the opinions of real consumers when hearing design patent infringement disputes. It requires judges to put their position on the level of ordinary consumers when making judgments, to understand and perceive the similarities and differences of the comparison objects
Methods for comparing design patents
To determine whether the designs are identical or similar, the following methods are generally used:
1. Observe with the naked eye.
To determine whether the accused infringing product is identical or similar to the design patented product, it should be judged based on whether ordinary consumers will be confused when they observe it with the naked eye. Parts that cannot be observed visually cannot be analyzed and compared with the help of instruments or chemical means. When observing, the similarities and differences in easily visible parts of the product should be used as the basis for judgment.
2. Isolated observation and direct comparison.
When making specific judgments, first of all, the design patent products and the accused infringing products should be placed separately, and there must be a certain amount of time and space during observation. interval. This method of isolated observation allows the judges to have an intuitive feeling or first impression of the two products. Secondly, the two products are placed together, and the judges directly compare and analyze the appearance designs of the two products to describe the similarities and differences between the two products, elevate the perceptual knowledge to rational knowledge, and finally conclude whether the two products are the same or not. Similar conclusions.
3. Overall observation and comprehensive judgment.
To determine whether the design of the allegedly infringing product is the same or similar to the patented design, we cannot just rely onStarting from the parts of the appearance design, or dividing the various parts of the appearance design, we should start from the whole and conduct an overall observation of all its elements. On the basis of the overall observation, we should analyze the main components and details of the appearance design of the two products. Make comprehensive judgments on innovation points.
For the alleged infringing product to constitute infringement, two conditions must be met:
First, the accused The infringing product contains the originality of the design patent (i.e., the innovative point). Second, the accused infringing product is generally the same as or similar to the design patented product
How to prevent
being sued for assault? Regarding design patent rights, the first thing to do is to examine whether the plaintiff’s design patent rights are valid.
According to a senior transfer from Baiteng Patent Baba, my country's patents can be divided into invention patents, utility model patents and design patents. Invention patents have gone through substantive examination, while utility model patents and design patents have not. As long as they meet the formal requirements, a patent certificate will be issued.
Therefore, many large utility model patents and design patents in my country do not meet the substantive requirements required by the patent law. For a period of time, if you think that someone else has infringed your utility model patent or design patent and you file a lawsuit in court, the court will require the plaintiff to provide a patent evaluation report, otherwise the case will not be filed. A patent evaluation report is a report issued after searching and evaluating whether a patent complies with the substantive requirements stipulated in the Patent Law. The substantive requirements here are mainly novelty, practicality and advancement. Of course, now the law has clearly stipulated that there is no need to conduct a patent evaluation before filing a lawsuit.
Novelty, that is, the patented technical solution has not been published at home or abroad before the patent application, and no one has published it publicly or used it publicly (before the modification of the Patent Law in 2008 , novelty stipulates domestic public use and public publication, and foreign only public publication). At this time, the reference object must not only be compared with the patent, but also must be before the patent application.
Although the Patent Law stipulates that if the accused infringer has evidence to prove that the technology or design he implemented belongs to the existing technology or existing design, it does not constitute infringement of patent rights. . However, many times, court judges do not have science or engineering backgrounds and cannot independently make judgments on technical issues, or are unwilling to make judgments on technical issues. If skillThe technology is relatively complicated, so it is recommended that you apply to the Patent Reexamination Board for invalidation of the patent. After the Patent Reexamination Board accepts the case, it requests the court to suspend the trial. Generally, courts prefer this method.
It solves the problem of whether the patent is valid (there are more issues about novelty). If the patent is still valid, the next step is to compare the plaintiff's patent with the defendant's product or Compare technical solutions. Many people compare the plaintiff’s products with the defendant’s products, which is wrong.
This kind of comparison is not simply the same or different. The key is to look at the technical features claimed by independent claims in item 1 (sometimes including item 2) of the plaintiff’s patent claim, and whether the defendant’s products and technical solutions include these technical features. If these technical features are included, even if some additional technical features are different, it will still constitute infringement. If not all of these technical features are included, but some technical features are the same as the dependent rights claimed in the patent request (generally item 2 onwards), it does not constitute infringement. Of course, there is also the issue of equivalent substitution, but writing it again is more complicated.
Of course, there are many other issues involved in patent infringement cases. However, the two issues mentioned above are the focus, and will be involved in basically all cases of patent infringement!
You can decide your own patent and cannot let others Stealing our own interests! So we must know these necessary legal knowledge! The above is the knowledge about patents that the editor of Legal Savior Network has found for you. I hope it will be helpful to everyone! If you have any questions, please feel free to contact us at Legal Savior Network for lawyer consultation.
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