A design patent is a type of patent right that mainly protects the aesthetic value of a product. When a dispute over infringement of design patent rights occurs, it is usually because someone has manufactured, sold or used products similar or identical to the patented product without the permission of the patentee, thus infringing the legitimate rights and interests of the patentee.
When dealing with such disputes, the first thing that needs to be determined is whether the allegedly infringing product has a similar or identical design to the patented product. This is usually done through a professional technical appraisal or comparison. If the alleged infringing product has a similar or identical design to the patented product, then further consideration is required as to whether the infringement is constituted. There are a number of factors that need to be considered when determining whether infringement has been constituted. First, it is necessary to determine whether the patentee's patent is still valid. If the patent has expired or been revoked, then the alleged infringing product does not constitute infringement. Second, it is necessary to consider whether the manufacturing and sale of the allegedly infringing product was carried out under the permission of the patentee. If so, then the alleged infringing product does not constitute infringement. Finally, it is necessary to consider whether the use of the allegedly infringing product constitutes infringement. If the allegedly infringing product is used only for personal use or research, and not for commercial purposes, then it may not constitute infringement. When dealing with such disputes, there are also issues such as legal procedures and evidence gathering that need to be considered. If the patentee believes that its rights and interests have been infringed, it can protect its rights and interests through legal means. This includes filing a lawsuit in court or applying to the relevant administrative authority to defend your rights. When collecting evidence, it is necessary to collect evidence related to the alleged infringing product, such as the product**, sales records, etc. In short, the handling of design patent infringement disputes requires comprehensive consideration of a number of factors, including the validity of the patent, the manufacture and sale of the allegedly infringing product, the use of the product, and the legal procedure and evidence collection. Only after taking these factors into account comprehensively can accurate judgment and handling be made.
Relevant legal provisions.
Patent Law of the People's Republic of China
Article 64.2 The scope of protection of a design patent right shall be subject to the design of the product expressed in ** or **, and a brief description may be used to explain the design of the product expressed in ** or **.
Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Dispute Cases
Article 71.
2.3 Where it is difficult to determine the losses of the right holder, the benefits obtained by the infringer, and the patent license fees, the people's court may determine compensation of not less than RMB 30,000 but not more than RMB 5,000,000 on the basis of factors such as the type of patent right, the nature and circumstances of the infringement, and so on. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement.
Article 8 Where a design identical or similar to the authorized design is adopted on a product of the same or similar type as the patented design product, the people's court shall determine that the accused design falls within the scope of protection of the design patent right as provided for in paragraph 2 of Article 59 of the Patent Law.
Article 10 The people's court shall judge whether the design is identical or similar based on the knowledge level and cognitive ability of the general consumer of the patented design product.
Article 11 When a people's court determines whether a design is identical or similar, it shall make a comprehensive judgment based on the design features of the authorized design or the accused design and the overall visual effect of the designDesign features that are primarily determined by technical functions and features such as materials and internal structures of products that do not affect the overall visual effect should not be considered.
The following situations usually have a greater impact on the overall visual effect of the design:
1) The parts that are easy to be directly observed during normal use of the product are relative to other parts;
2) Other design features of the patented design that distinguish the patented design from the existing design.
If there is no difference between the alleged infringing design and the authorized design in terms of overall visual effect, the people's court shall find that the two are the same;Where there is no substantial difference in the overall visual effect, the two shall be found to be similar.