A design patent refers to a new design that is aesthetically pleasing and suitable for industrial applications for the shape, pattern or combination of the product, as well as the combination of color, shape and pattern.
Design patent is the object of patent right, which is completely different from invention or utility model, that is, design is not a technical solution.Overview of Design Patents:
Design patent is the object of patent right and the object of protection by patent law. It refers to the design that should be granted patent right according to law. It is completely different from invention or utility model, that is, design is not a technical solution. Article 2 of China's "Patent Law" stipulates: "Appearance design refers to a new design that is rich in aesthetics and suitable for industrial application by the shape, pattern or combination of the product and the combination of color, shape and pattern." /p>
It can be seen that a design patent should meet the following requirements:
⑴ refers to the design of shape, pattern, color or combination thereof;
The latest version of the design patent certificate
The latest version of the design patent certificate
⑵ must be the design of the appearance of the product;
⑶ must be full of beauty;
⑷ must be suitable for industrial applications
Generally, the combinations that can constitute an appearance design are: the shape of the product; the pattern of the product; the shape and pattern of the product; the shape and color of the product; the pattern and color of the product; the shape, pattern and color of the product.Industrial product shape meaning
The appearance shape of an industrial product refers to the design of the product shape, that is, the appearance outline presented by the movement, change, and combination of points, lines, and surfaces outside the product, that is, the structure, shape, etc. of the product are designed at the same time, Manufacturing results;Industrial product appearance pattern meaning
The appearance pattern of industrial products refers to the graphics formed on the surface of the product by the arrangement or combination of any lines, characters, symbols, and color blocks. The appearance pattern of the product should be fixed and visible, and should not be intermittent or need to be seen under specific conditions.Industrial product color meaning
The color of an industrial product refers to the color or combination of colors used on the product, and the natural color of the material used to manufacture the product is not the color of the design. The color of a product cannot independently constitute a design unless the change in the color of the product itself has formed a pattern.
The documents for applying for a design patent include:
Design patent application, pictures or photos, each in duplicate. If color protection is required, color pictures or photos shall also be submitted in duplicate. Both submissions are images, both submissions are photos, and images and photos cannot be mixed. If it is necessary to describe the pictures or photos, a brief description of the design should be submitted in duplicate. The photos required are the six-sided views of the product (front view, rear view, top view, bottom view, left view, right view) and three-dimensional view. If a pattern is required to be protected, an expanded view and a three-dimensional view should be submitted; if the color protection is required, Color and black and white photographs or pictures should be submitted. Figures range in size from 3 x 8 cm to 15 x 22 cm. No shadows or dashed lines may appear on the picture, the background of the picture can only be of one color, and the picture must not have anything other than the required design. In addition, each view must be a front view, regardless of whether the submission is an image or a photo.
Design patented products are more everyday commodities than invention and utility model patented products. For the subtle differences between some similar products, ordinary consumers tend to ignore them, but professionals can easily distinguish them. . When judging whether the alleged infringing product is the same or similar to the design patent product, it is obviously unfair to the right holder from the perspective of a professional. Therefore, the judgment of design patent infringement should be based on the aesthetic observation ability of ordinary consumers, and should not be based on the aesthetic observation ability of professional technicians in the field to which the design patent belongs. For products of the same or similar category, It does not constitute an infringement if the ordinary consumers do not get confused if they use ordinary attention, and it constitutes an infringement if the ordinary consumers do not avoid confusion if they exercise ordinary attention.
The ordinary consumers above refer to those who purchase and use the product with the design patent. Under normal circumstances, the meaning of "consumer" in ordinary consumers and consumer rights protection law is the same. However, for non-ordinary consumer goods, such as building materials, machine parts, power tools, etc., ordinary consumers are not their buyers, and they do not have general knowledge and cognitive ability of such products, so they can make the same or similar The subject of the comparison should be the specific consumer groups of such products, that is, the people who sell, buy, install and use such products.
Taking ordinary consumers as the subject of infringement judgment does not require the people's court to seek the opinions of real consumers when hearing design patent infringement disputes, but requires the judges to put their position in the judgment when making a judgment. On the level of ordinary consumers, recognize and perceive the similarities and differences of the objects.How to compare
The following methods are generally used to judge whether the designs are identical or similar:
1. Visual observation.
To judge whether the accused infringing product is the same or similar to the design patent product, it should be judged according to whether ordinary consumers will be confused when they observe it with the naked eye. Analyze and compare. When observing, the similarities and differences of the easily visible parts of the product should be used as the basis for judgment.
2. Isolation observation, direct comparison.
When making a specific judgment, the design patent product and the accused infringing product should be placed separately first, and there should be a certain interval in time and space during observation. A product creates an intuitive feeling that is the first impression. Next, put the two products together, and the judges will directly compare and analyze the designs of the two products to describe the similarities and differences between the two products, raise the perceptual knowledge to the rational knowledge, and finally determine whether the two are the same or not. similar conclusions.
3. Overall observation and comprehensive judgment.
When judging whether the design of the accused infringing product is the same or similar to the patented design, it should not only start from the part of the design, or separate the parts of the design, but should start from the whole. Make an overall observation on all its elements, and on the basis of the overall observation, make a comprehensive judgment on the main components and innovation points of the two product designs.
The alleged infringing product constitutes infringement must meet two conditions:
One is that the accused infringing product contains the original part of the design patent (that is, the innovation point), and the other is that the accused infringing product is identical or similar to the design patent product as a whole.Determination of design essentials
The main part of design is the main part of the design patent that is original and rich in aesthetics, that is, the innovation point of the design patent completed by the designer through creative work. When comparing the design of the accused infringing product and the patented product, the most agreed approach is to focus on the main part of the comparison to see whether the accused infringing product has plagiarized or imitated the original part of the right holder. Identical or similar essential parts are a necessary condition for constituting identical or similar designs, and designs that are not identical and dissimilar in essentials are designs that are not identical or dissimilar, and do not constitute infringement.
In the patent application stage, most applicants did not clearly point out the important parts; in the granting stage of the rights, the examiners only focused on the overall effect of the design; in the grant announcement, the patent administration department of the State Council would not Clearly delineate what are the essential parts of the patent. However, important parts, as part of the overall appearance, although scattered, can usually be represented in the view of the patent publication.
The main part of the design is the main visual part of the product that can most attract the observation and attention of ordinary buyers and users. In practice, the methods of confirmation of key departments are not consistent, some adopt the method of direct statement by the right holder, and some adopt the method of making a statement by the right holder and the accused infringer, and the court determines after cross-examination. No matter what method is adopted, the basic principle for determining the main part is that the design innovation of the right holder contains design innovations that can attract the attention of consumers.Same or similar
In practice, it is not difficult to identify the same design, as long as the design of the alleged infringing product is compared with the design of the patented product, if all elements such as shape, pattern, color and combination thereof are the same, then for the same exterior design. What is more difficult is the identification of similar designs.
Similar appearance design means that the shape, pattern, color and combination of the accused infringing product and the patented product are basically the same, and some minor differences are not enough to attract the attention of ordinary consumers, so that ordinary consumers are not aware of the two types of products. Product confusion, mistakenly thinking that this is the other. When judging similar designs, the design comparison method is generally used.The alignment order of the three elements
According to the provisions of Article 2, Paragraph 3 of the Implementing Regulations of the Patent Law, design includes shape design, pattern design, design combined with shape and figure, design combined with shape and color, design combined with image and color, and combination of shape and color. Design.
There are three elements that constitute an appearance design, namely the shape, pattern and color of the product with a design patent. Among the three elements, the shape and pattern are the foundation, and the color is attached to the shape and pattern. The color that is separated from the shape and pattern cannot be the design scheme protected by the design patent under the current Chinese patent law. In this sense, color protection is subordinate.
In view of this, when comparing the appearance design of two products, it should generally be carried out in the order of shape, pattern and color. When judging whether the designs that combine shapes, figures and colors are the same or similar, it is necessary to first judge whether the shapes are the same or similar. If the shapes are the same or similar but the shape belongs to a well-known prior design, it should be further judged whether the patterns are the same or similar, and the patterns are not the same or not, then it can be determined that the designs are not the same or similar, and there is no need to color If the patterns are the same or similar but the patterns belong to a well-known prior design, then judge whether the colors are the same or similar. Similar designs constitute the same or similar designs. Among the three elements, the shape is the most important, and the comparative shape should be the main consideration in the determination of infringement. If the appearance shape of the product is originally created by the patentee, and the alleged infringing product uses the shape and adds a pattern, then no matter what pattern is added to the alleged infringing product, it shall be deemed to be infringing.
According to the Regulations for the Implementation of the Patent Law, when applying for a design patent, the applicant shall specify the product using the design and the category to which it belongs. To be exact, supplements or amendments shall be made by the Patent Office. The "Guidelines for Patent Examination" of the State Intellectual Property Office has made corresponding explanations on the content of design classification, the basis of classification, and the determination of classification numbers.Categories
The classification examiner classifies the products according to the International Design Classification, and gives the major and minor class numbers to the products for which the design patent is applied.Classification by
The classification of industrial designs shall be based on the products represented in the pictures or photographs submitted by the applicant. In order to ensure the accuracy of the classification, the applicant should provide information such as the product category and its field. Information such as "the name of the product using the design" and "the field, purpose, method of use, or place of use" stated in the brief description in the request may explain or explain the category of the product shown in the picture or photo. Limitation can be used as a basis or reference for classification.
In the case where the name of the product using the design recorded in the request is inconsistent with the product represented in the design picture or photo, the classification examiner shall give a classification number according to the design picture or photo, and in this case Label.
In the case where the applicant gives the category of the design product in accordance with the Regulations for the Implementation of the Patent Law, the wishes of the parties should generally be respected when determining the category of the product, but the category given by the applicant is inaccurate or If the relevant regulations are not met, the examiner may revise the category ex officio and give an accurate classification number; if the design patent applicant does not give the category of the design product, the examiner may give the product ex officio During the examination process of a design patent application, if the classification number needs to be revised due to the modification of the name of the product using the design, it shall be reclassified by the examiner.Determination of classification number
When determining the category of a design product, the major and minor categories in the design classification table shall be determined according to the purpose of the product. Products for the same purpose should be classified into the same major and subclasses in the Design Classification.
The category of a design product shall be classified into the subclass containing the superordinate concept of the use of the product in the design classification table; if there is no subclass containing the superordinate concept of the use of the product, it shall be classified into the subclass containing the Miscellaneous category in the general concept of product use; if there is no general category that includes the general concept of product use, it should be classified into the miscellaneous category of the classification table.
The classification number consists of a major class number and a minor class number. The major category number and the minor category number are represented by two Arabic numerals respectively; if there are less than two digits, add 0 before the numbers 1 to 9; the major category number and the minor category number are connected with a dash. For example, the classification number for televisions is 14-03. In addition, for multi-category products, multiple classification symbols are separated by semicolons.
Classification of a single-purpose product
If a design product or set of products has a single purpose, a classification number shall be given.
Classification of two multi-purpose products
When a design product is a combination of two or more products with different uses, the examiner may give multiple classification numbers (usually two) corresponding to the uses. The classification number determined by the main use of the product is the main classification number, and the classification number determined by the secondary use is the secondary classification number. Generally speaking, the use reflected in the main part or the larger part of the product appearance is the main use, and the use reflected in the minor part or the smaller part of the product appearance is the secondary use. For example, for an alarm clock with a radio, if the main or larger part of the product appearance is used as an alarm clock, and the minor or smaller part of the product appearance is used as a radio, then its main classification number is 10-01, and its sub-classification number is 10-01. for 14-01.
Notice of three-category corrections
Where the applicant does not indicate the category of the product, and does not indicate the field, purpose, method of use or place of use in the brief description, or the field, purpose, method of use or place of use described in the brief description If it is inaccurate, the examiner may issue a notice of correction of classification, requiring the applicant to explain the field, purpose, method of use or place of use of the product. When necessary, the applicant may also be required to submit a reference diagram of the product in use.
The applicant shall reply within one month after receiving the notice of classification correction. If the applicant fails to reply or does not meet the requirements after the reply, the examiner shall give the classification number according to the application documents.