The patent legal system provides legal protection for inventors, protects their exclusive rights of invention creation, and enables them to recover the invention cost and obtain excess value through their own use or allowing others to use it for a fee. This is an effective mechanism to stimulate innovation, thus greatly encouraging and mobilizing the enthusiasm of the vast number of scientific and technological personnel for invention and creation, and is an indispensable basic condition and positive force for national economic development and scientific and technological progress.

I. Provisions of Article 23 of the Patent Law

Article 23 of the Patent Law stipulates that a design granted a patent right does not belong to an existing design; Before the filing date, no unit or individual has filed an application with the patent administration department of the State Council for the same design, and it is recorded in the patent documents published after the filing date.

Compared with the existing design or the combination of existing design features, the patented design should have obvious differences.

A design that has been granted a patent right shall not conflict with the legal rights that others have obtained before the date of application.

Existing designs as mentioned in this Law refer to designs known to the public at home and abroad before the date of application.

II. Interpretation of Article 23 of the Patent Law

This article is about the requirements for granting the patent right of design.

(a) the design that has been granted a patent right shall be novel, that is, it does not belong to the existing design; Before the filing date, no unit or individual has filed an application with the patent administration department of the State Council for the same design, and it is recorded in the patent documents published after the filing date. Therefore, in terms of novelty, it is the same as the standard of invention and utility model.

Whether 1. is novel should be judged by whether the design applying for patent belongs to the existing design. The so-called existing design refers to the design known to the public at home and abroad before the application date. Needless to say, before the filing date, the design shall not be known to the public at home and abroad in any of the following ways: (1) It is published publicly, that is, the same design has been recorded in official publications before the filing date. (2) Open use means that the design is known to the public because of its application, such as the design of the product itself or the design of its packaging. (3) It is known to the public by other means; Such as oral publicity, let the public know the design content through reports, seminars, radio or television broadcasts.

2. The time limit for judging whether it is novel shall be the filing date of the patent application. According to the relevant provisions of this law, the date when the patent administrative department of the State Council receives the patent application documents is the filing date. If the application documents are mailed, the postmark date of mailing shall be the application date. Where priority is enjoyed, it refers to the priority date. As long as the design applied for patent is not in the existing design before the application date, it is novel.

3. Whether the same design has been applied by any unit or individual and recorded in the patent documents, that is, whether there is a "conflicting application". In order to avoid repeated authorization of the same patent application for design, the design applied first should be regarded as the existing design of the design applied later, so the latter application is not novel.

(2) the design should be creative, that is, the design granted a patent right should be obviously different from the existing design or the combination of existing design features.

1, whether the design is creative includes: (1) existing design. In other words, the patent design as a whole should be obviously different from the existing design. (2) Combination of existing design features. According to the provisions of TRIPs, member countries can evaluate the creativity of design through jigsaw test, that is, the overall product design is divided into several design features, which should be obviously different from the existing design features. It is emphasized that patent design should be obviously different from the combination of existing design features, mainly to solve the problem of patchwork design in practice. There are two main manifestations of patchwork patents: one is the design that combines the usual design with the design features of well-known products. For example, a domestic manufacturer applies for a patent for automobile shape, and the front part imitates the Mercedes-Benz model; The other is a simple combination of existing designs, such as adding a charging socket on the basis of Philips electric iron modeling and applying for a design patent.

2. The criteria for judging whether the design is creative are obviously different from the existing design or the combination of existing design features. The so-called "obvious difference" means that the two are not the same or similar and will not cause public misunderstanding. If one of the following conditions is met, it is obviously different: (1) The use and function of the product are different or not similar to the existing design. When the same design is used on different products, it should not be considered as the same design. (2) Compared with the existing design, the shape, pattern or their combination, and the combination of color and shape and pattern are not the same or similar.

(3) The design to which the patent right has been granted shall not conflict with the legal rights that others have obtained before the date of application. The legal rights obtained by others before the filing date mainly refer to: trademark right, copyright (mainly referring to works of art), portrait right, etc. Because design refers to a new design based on the shape, pattern or combination of products and the combination of color and shape and pattern, which is aesthetic and suitable for industrial application, design is easy to conflict with trademark rights, copyright and other rights. Therefore, legal provisions shall not conflict with these rights. That is, if others have obtained the above legal rights in advance, the applicant for a patent for design shall not obtain the patent right for design of products with these trademarks and works of art.