A little discussion of the general consumer in the determination of design infringement.
Published:
2021-12-23
1 Opinion of the Supreme Court One of the focus of the dispute summarized by the Supreme Court in Administrative Judgment No. 359 of the Supreme Court (2020) is whether the internal cavity structure of profile products is protected by the design patent right (should be protected). In this regard, the Supreme Court held that: Part IV, Chapter V, Section 4 of the "Patent Examination Guidelines" stipulates that general consumers of a certain type of design products should have the following characteristics:(1) The design of the same or similar type of products before the date of the patent application in question And its common design methods have a common sense understanding. Commonly used design techniques include the design of the transfer, splicing, replacement and other types. (2) the design of the product between the shape, pattern and color of the difference has a certain degree of resolution, but will not notice the product shape, pattern and color of small changes. It can be seen that the general consumer refers to a consumer group, and different consumer and user groups often have different understandings and visual impressions on the appearance design of products in different fields. "General consumer" is a person who can represent the general commonness of ordinary consumers, which is the same as the concept of "ordinary technical personnel in this field" introduced in the creative judgment of invention and utility model and the abstract concept of "ordinary person" of "general attention" commonly used in civil law. The court can neither regard a group of people as the general consumers of all products, nor can people who have nothing to do with a certain product be regarded as ordinary consumers of this product, otherwise, the conclusion drawn is likely to be unfair. The general consumer is not any citizen, but a purchaser or user of a particular class of goods. Because only consumers who buy goods or consumers who use goods need to compare and judge the similarity between the product and other products of the same kind, the evaluation of patented products should be restricted by the observation population. Profile products are an intermediate product. The end users of the products often do not buy the profiles themselves alone. What they consume is products assembled from profiles, and the sales mode of profile products also leads to the end users of the products. It is often obtained through distributors or operators, and rarely directly purchased through manufacturers. Based on this, the general consumers of profile products include not only the end users of the products, but also the relevant operators, salesmen and purchasers in all aspects of profile manufacturing, sales, installation and use. Compared with the end user, the main body in the purchase of patented products, will pay more attention to the various design features of the product, especially the internal cavity structure has a larger design space, in the profile section accounted for a relatively large, should be focused on the design features. The original judgment held that the determination that the internal cavity structure was completely invisible in the final use state ignored the condition that the internal structure in the legal sense should be restricted by the observation population, and the court corrected it. 2 Analysis of the Supreme Court Referee's Viewpoint The above evaluation of the Supreme Court in this case can be briefly described as follows: ordinary consumers are typed subjects with a common perspective, and different types of consumers have different perspectives for the same product, thus resulting in relatively more design elements for the same product, according to the perspective of one type of consumer, while according to the perspective of another type of consumer, the design elements are relatively less. In this case, the direct sales objects of profile products are related operators, salesmen and purchasers in various links such as profile manufacturing, sales, installation and use. Such subjects will pay more attention to the design details of the profile than the end users during purchase, thus paying more attention to various design features of the product, especially the internal cavity structure has a larger design space and accounts for a larger proportion in the profile interface, is a design feature that should be emphatically considered. Below we look at the characteristics of the profile itself, the first is the definition of its discipline, refers to the metal after plastic processing, with a certain cross-sectional shape and size of the solid straight bar. The profile is a product with a certain geometric shape made of materials such as iron and aluminum with a certain strength and toughness through rolling, extrusion, casting and other processes. It has predetermined mechanical properties by virtue of its appearance size and cross-sectional shape. The design of profile section mainly considers whether the corresponding section has good mechanical properties. In addition, considering the connection form of the final product, and adding auxiliary structures such as connecting ribs in the cross-sectional design, the direct consideration is still the function. For example, the relevant operators in the manufacturing process, the design and manufacture of the profile section, directly consider whether the section makes the profile more powerful (with features), rather than looking more handsome (decorative features). Forcing fiction to be aesthetic, or to define it as a decorative feature, is not too convincing, and will lead to the need to consider too many irrelevant factors in the determination of design infringement, which makes the determination of infringement more cumbersome and more prone to problems. Regarding the logical analysis of the above-mentioned referee's point of view, we first look at its logical characteristics. There is a logical fallacy called the affirmative latter. The normal logic is that the former is true-> the latter is true, and the affirmation of the latter is directly or indirectly through some form of description substantially affirms the latter, and the common form is to strengthen the opposite party's affirmation of the latter through multiple direct or indirect terms. However, the relevant description of the judgment in this case "when purchasing patented products, such subjects will pay more attention to various design features of the products, especially the internal cavity structure has a large design space, which accounts for a large proportion of the profile section and is the design feature that should be considered" includes two "design features" and one "design space", thus strengthening the true understanding that "the profile section shape is the design element. However, is the so-called "design feature to be considered" a design feature of a true industrial design? In fact, many guiding cases of the Supreme Court are trying to separate decorative features (design features) and used features (functional features). However, the first paragraph of Article 11 of the Supreme People's Court's (II) on Several Issues Concerning the Application of Laws in Hearing Patent Infringement Disputes stipulates that when the people's court determines whether the design is the same or similar, it shall be based on the design features of the authorized design and the accused infringement design, comprehensive judgment based on the overall visual effect of the design; design features mainly determined by technical functions and features such as materials and internal structure of the product that do not affect the overall visual effect shall not be considered. As a further example, the following situations usually have a greater impact on the overall visual effect of the design: (1) The parts of the product that are easily observed directly during normal use are relative to other parts. For the profile section, the design should first consider the mechanical properties of the profile, and then, for example, the process of extrusion, such as the transition design at the corner, these two considerations are determined by the technical function, rather than the decorative decision. As far as the characteristics of the profile are concerned, considering the appearance design characteristics of the profile section, the essence is that the shape of the section affects the expression of the shape characteristics of the profile used to show people. As an intermediate product, the general consumer has more in-depth consideration than the end user. The more in-depth consideration is not the end user's simple perception of side beauty, but the expression of side beauty display and cross-section to side beauty display, thus affecting the end user's perception, and more will consider the correlation between cross-section structure and beauty perception, rather than what kind of beauty the cross-section structure itself will give people. People who have studied industrial design know that "industrial design leads to a new relationship between commodities and users except for the simple use of functions". Although a large number of designs have both the use of functions and the consideration of "beauty", they cannot get rid of the constraints of "new relationship". With the help of this new relationship, it makes the right holders and the public have relatively stable expectations of the object of protection of the design, instead of dividing the characteristics of "use" in some cases and taking the characteristics of "use" into account in other cases. It has to be said that profiles, a product with relatively few characteristics belonging to design elements, are identified as the object of design protection, which is very tasteless. However, the characteristics that should not belong to design elements should not be taken into account because of the lack of them, otherwise there will be a very large space for the determination of the scope of protection of design patents, and the public will not have a stable expectation of its protection scope, and then make the behavior of the public infringement in unpredictable, unstable, uncertain state, can not reasonably arrange their own production and operation.
1
Opinion of the Supreme Court
One of the focus of the dispute summarized by the Supreme Court in Administrative Judgment No. 359 of the Supreme Court (2020) is whether the internal cavity structure of profile products is protected by the design patent right (should be protected). In this regard, the Supreme Court held that:
Part IV, Chapter V, Section 4 of the "Patent Examination Guidelines" stipulates that general consumers of a certain type of design products should have the following characteristics:(1) The design of the same or similar type of products before the date of the patent application in question And its common design methods have a common sense understanding. Commonly used design techniques include the design of the transfer, splicing, replacement and other types. (2) the design of the product between the shape, pattern and color of the difference has a certain degree of resolution, but will not notice the product shape, pattern and color of small changes. It can be seen that the general consumer refers to a consumer group, and different consumer and user groups often have different understandings and visual impressions on the appearance design of products in different fields. "General consumer" is a person who can represent the general commonness of ordinary consumers, which is the same as the concept of "ordinary technical personnel in this field" introduced in the creative judgment of invention and utility model and the abstract concept of "ordinary person" of "general attention" commonly used in civil law. The court can neither regard a group of people as the general consumers of all products, nor can people who have nothing to do with a certain product be regarded as ordinary consumers of this product, otherwise, the conclusion drawn is likely to be unfair. The general consumer is not any citizen, but a purchaser or user of a particular class of goods. Because only consumers who buy goods or consumers who use goods need to compare and judge the similarity between the product and other products of the same kind, the evaluation of patented products should be restricted by the observation population.
Profile products are an intermediate product. The end users of the products often do not buy the profiles themselves alone. What they consume is products assembled from profiles, and the sales mode of profile products also leads to the end users of the products. It is often obtained through distributors or operators, and rarely directly purchased through manufacturers. Based on this, the general consumers of profile products include not only the end users of the products, but also the relevant operators, salesmen and purchasers in all aspects of profile manufacturing, sales, installation and use. Compared with the end user, the main body in the purchase of patented products, will pay more attention to the various design features of the product, especially the internal cavity structure has a larger design space, in the profile section accounted for a relatively large, should be focused on the design features. The original judgment held that the determination that the internal cavity structure was completely invisible in the final use state ignored the condition that the internal structure in the legal sense should be restricted by the observation population, and the court corrected it.
2
Analysis of the Supreme Court Referee's Viewpoint
The above evaluation of the Supreme Court in this case can be briefly described as follows: ordinary consumers are typed subjects with a common perspective, and different types of consumers have different perspectives for the same product, thus resulting in relatively more design elements for the same product, according to the perspective of one type of consumer, while according to the perspective of another type of consumer, the design elements are relatively less. In this case, the direct sales objects of profile products are related operators, salesmen and purchasers in various links such as profile manufacturing, sales, installation and use. Such subjects will pay more attention to the design details of the profile than the end users during purchase, thus paying more attention to various design features of the product, especially the internal cavity structure has a larger design space and accounts for a larger proportion in the profile interface, is a design feature that should be emphatically considered.
Below we look at the characteristics of the profile itself, the first is the definition of its discipline, refers to the metal after plastic processing, with a certain cross-sectional shape and size of the solid straight bar. The profile is a product with a certain geometric shape made of materials such as iron and aluminum with a certain strength and toughness through rolling, extrusion, casting and other processes. It has predetermined mechanical properties by virtue of its appearance size and cross-sectional shape. The design of profile section mainly considers whether the corresponding section has good mechanical properties. In addition, considering the connection form of the final product, and adding auxiliary structures such as connecting ribs in the cross-sectional design, the direct consideration is still the function. For example, the relevant operators in the manufacturing process, the design and manufacture of the profile section, directly consider whether the section makes the profile more powerful (with features), rather than looking more handsome (decorative features). Forcing fiction to be aesthetic, or to define it as a decorative feature, is not too convincing, and will lead to the need to consider too many irrelevant factors in the determination of design infringement, which makes the determination of infringement more cumbersome and more prone to problems.
Regarding the logical analysis of the above-mentioned referee's point of view, we first look at its logical characteristics. There is a logical fallacy called the affirmative latter. The normal logic is that the former is true-> the latter is true, and the affirmation of the latter is directly or indirectly through some form of description substantially affirms the latter, and the common form is to strengthen the opposite party's affirmation of the latter through multiple direct or indirect terms. However, the relevant description of the judgment in this case "when purchasing patented products, such subjects will pay more attention to various design features of the products, especially the internal cavity structure has a large design space, which accounts for a large proportion of the profile section and is the design feature that should be considered" includes two "design features" and one "design space", thus strengthening the true understanding that "the profile section shape is the design element. However, is the so-called "design feature to be considered" a design feature of a true industrial design?
In fact, many guiding cases of the Supreme Court are trying to separate decorative features (design features) and used features (functional features). However, the first paragraph of Article 11 of the Supreme People's Court's (II) on Several Issues Concerning the Application of Laws in Hearing Patent Infringement Disputes stipulates that when the people's court determines whether the design is the same or similar, it shall be based on the design features of the authorized design and the accused infringement design, comprehensive judgment based on the overall visual effect of the design; design features mainly determined by technical functions and features such as materials and internal structure of the product that do not affect the overall visual effect shall not be considered. As a further example, the following situations usually have a greater impact on the overall visual effect of the design: (1) The parts of the product that are easily observed directly during normal use are relative to other parts. For the profile section, the design should first consider the mechanical properties of the profile, and then, for example, the process of extrusion, such as the transition design at the corner, these two considerations are determined by the technical function, rather than the decorative decision.
As far as the characteristics of the profile are concerned, considering the appearance design characteristics of the profile section, the essence is that the shape of the section affects the expression of the shape characteristics of the profile used to show people. As an intermediate product, the general consumer has more in-depth consideration than the end user. The more in-depth consideration is not the end user's simple perception of side beauty, but the expression of side beauty display and cross-section to side beauty display, thus affecting the end user's perception, and more will consider the correlation between cross-section structure and beauty perception, rather than what kind of beauty the cross-section structure itself will give people.
People who have studied industrial design know that "industrial design leads to a new relationship between commodities and users except for the simple use of functions". Although a large number of designs have both the use of functions and the consideration of "beauty", they cannot get rid of the constraints of "new relationship". With the help of this new relationship, it makes the right holders and the public have relatively stable expectations of the object of protection of the design, instead of dividing the characteristics of "use" in some cases and taking the characteristics of "use" into account in other cases. It has to be said that profiles, a product with relatively few characteristics belonging to design elements, are identified as the object of design protection, which is very tasteless. However, the characteristics that should not belong to design elements should not be taken into account because of the lack of them, otherwise there will be a very large space for the determination of the scope of protection of design patents, and the public will not have a stable expectation of its protection scope, and then make the behavior of the public infringement in unpredictable, unstable, uncertain state, can not reasonably arrange their own production and operation.
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