How to determine infringement of a design patent?

1. Determination of the scope of protection of the design patent right According to the provisions of paragraph 2 of Article 59 of the Patent Law, the scope of protection shall be subject to the ** or ** of the design patent product submitted by the design patentee to the Patent Office when applying for a design patent, including the main view, top view, side view, etc. The main view is the most important as it best reflects the aesthetics of the design. When determining the scope of protection of a design patent, care should also be taken to identify the elements that reflect the aesthetics of the design from these views.

2. The method of determining whether a patented design product and an infringing product are identical or similar goods in judicial practice is usually based on the function and use of the product, and at the same time refers to the classification of the relevant goods in the International Design Classification Table. If the patented design product and the alleged infringing product are identical in function and use, it can be determined that the two are the same or similar goods, and the comparison in point 3 below can be continued. If the two are different in function and use, it can be determined that they are neither the same goods nor similar goods, and then we can end our infringement determination step and determine that the patent infringement is not established.

3. Compare the design patent with the alleged infringing product, that is, from the perspective of ordinary consumers, make a key observation and overall judgment on the design of the patented design and the alleged infringing product. Legal basis: Article 2 of the Detailed Rules for the Implementation of the Patent Law of the People's Republic of China refers to the new design of the shape, pattern, color or combination thereof made of a product that is aesthetically pleasing and suitable for industrial application. Article 59 of the Patent Law of the People's Republic of China shall refer to the design patent product submitted by the design patentee to the Patent Office at the time of application for a design patent, including the main view, top view, side view, etc.

1) To determine the scope of protection of a design, the design indicated in ** or ** of the patented product shall prevail, and a brief description of the design can be used to understand the scope of protection of the design. (2) In an infringement lawsuit, the design patentee shall submit a "design drawing" of its design, explaining the original parts and contents of the design; If the patentee has submitted the "design points drawing" to the national patent administration department of the People's Republic of China when applying for a design patent, the patent file may be used as evidence to determine the design points.

Legal basis: Article 60 of the Patent Law of the People's Republic of China Where the exploitation of the patent without the permission of the patentee is an infringement of the patentee's patent right, and a dispute arises, the parties shall settle the dispute through negotiation; If the patentee is unwilling to negotiate or fails to reach an agreement, the patentee or interested party may file a lawsuit with the people's court, or may request the department in charge of patent work to handle the matter. If the department in charge of patent work admits that the infringement is not established, it may order the infringer to immediately stop the infringement, and if the party concerned is not satisfied, it may file a lawsuit with the people's court in accordance with the Administrative Litigation Law of the People's Republic of China within 15 days from the date of receipt of the notice of disposition. Where the infringer does not prosecute and does not stop the infringing act at the end of the time limit, the department in charge of the work of ambushing and delaying profits may apply to the people's court for compulsory enforcement.

At the request of the parties, the department responsible for the administration of patent work may mediate the amount of compensation for patent infringement; If mediation fails, the parties may file a lawsuit with the people's court in accordance with the Civil Procedure Law of the People's Republic of China.

Legal basis: Article 56 of the Patent Law of the People's Republic of China.

1. Determine the scope of protection of the design patent. According to the second paragraph of Article 56 of the Patent Law, the scope of protection shall be subject to the patented product of the design expressed in ** or **.

2. Determine whether the patented design product and the infringing product are the same or similar products. It is usually based on the function and use of the product, and at the same time refers to the classification of goods related to the International Design Classification Scheme (i.e., the Locarno Treaty). If the patented design product and the alleged infringing product are identical in function and use, it can be determined that the two are identical or similar goods.

If the two are different in function and use, it can be determined that they are neither the same goods nor similar goods, so that the patent infringement is not established.

1. The method of determining the amount of damages for patent infringement.

There are three ways to calculate patent infringement in judicial practice: the first is to calculate the loss of the right holder. The loss of the right holder can be calculated according to the total number of sales loss caused by the infringement of the patentee's patented product, multiplied by the reasonable profit of each patented product.

If it is difficult to determine the total amount of the reduction in sales volume of the right holder, the total number of infringing products sold in the market, multiplied by the reasonable profit of each patented product, can be regarded as the actual loss suffered by the right holder due to the infringement. The second is to calculate the infringer's profit. The benefits obtained by the infringer as a result of the infringement are generally calculated according to the business profits of the infringer, and for the infringer who is entirely engaged in infringement, it can be calculated according to the sales profits.

The third is to calculate the license fee. Where it is difficult to determine the losses of the right holder or the benefits obtained by the infringer, and there are patent royalties that can be referred to, the people's court may reasonably determine the amount of compensation based on factors such as the type of patent right, the nature and circumstances of the infringement, the nature, scope, and time of the patent license, and with reference to the multiple of the patent royalties; If there is no patent royalty to refer to, or the patent royalty is obviously unreasonable, the Chunkaichong People's Court may, on the basis of factors such as the type of patent right, the nature and circumstances of the infringement, and in accordance with the provisions of paragraph 2 of Article 65 of the Patent Law, determine the specific amount of compensation between 10,000 and 1,000,000 RMB.

2. How to compensate for infringement of design patent rights.

The amount of compensation for infringement of design patent right shall be determined according to the actual losses suffered by the right holder due to the infringement; Where the actual losses are difficult to determine, they may be determined on the basis of the benefits obtained by the infringer as a result of the infringement. Where it is difficult to determine the loss of the right holder or the benefit obtained by the infringer, it shall be reasonably determined with reference to the multiple of the patent royalty. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement of Sun Sun's rights.

If 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 the compensation of not less than 10,000 yuan but not more than 1,000,000 yuan based on factors such as the type of patent right, i.e., the design patent, the nature and circumstances of the infringement.