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Appearance design, according to the provisions of Article 2, Paragraph 3 of the Implementing Rules of the Patent Law, refers to the design of a product New designs made of shapes, patterns, colors or their combination that are aesthetically pleasing and suitable for industrial application. There are three steps to determine design patent infringement:

1. Determine the scope of protection of design patent rights

According to the provisions of Article 59, Paragraph 2 of the Patent Law , the scope of protection shall be based on the design patent product shown in the pictures or photos submitted by the design patentee to the Patent Office when applying for a design patent, including front view, top view, side view, etc. Among them, the main view is the most important because it best reflects the beauty of the exterior design. When determining the scope of protection of a design patent, attention should also be paid to identifying the elements that can reflect the beauty of the design from these views.

There is a clear distinction between the scope of protection of design patents and invention or utility model patents. The former is a visually visible aesthetic appearance, while the latter is a technical concept or technical solution that is patentable.

2. Determine whether the design patented product and the infringing product are the same or similar goods

The identification method in judicial practice is usually based on the function and use of the product as the standard, and also refers to Classification of goods related to the International Design Classification Table (i.e. Locarno Treaty). If the design patent product and the alleged infringing product are identical in function and use, it can be determined that they are the same or similar goods, and the comparison in point 3 below can be continued. If the two are not identical in terms of function and use, it can be determined that they are neither the same product nor similar products. At this point, our infringement determination step can be concluded and the patent infringement is not established.

3. Compare the design patent with the product accused of infringement

That is, from the perspective of an ordinary consumer, compare the design patented and the design of the product accused of infringement Observe key parts and make an overall judgment. After comparison, the following three results may occur:

(1) If the design of the accused infringing product is exactly the same as the patented design, it is determined that the former falls within the scope of patent protection, and patent infringement is established;

(2) If the design of the accused infringing product is basically the same as the patented design in important parts and is similar as a whole, the patent infringement may also be determined based on the principle of equivalents;

< p>(3) If the design of the alleged infringing product is neither identical nor similar to the patented design as a whole, it will be deemed that the alleged infringing product does not fall within the scope of patent protection, and patent infringement is not established.