The Analysis of Design Patent Infringement Test ─And Various Applications of Copyright Act and Fair Trade Act
Date Issued
2015
Date
2015
Author(s)
Lin, Ying
Abstract
Nowadays, industrial designs are not just protected by the Design Patent Law. Multiple protections have become the mainstream. Therefore, the relation and reconciliation between the Design Patent Law and various Acts is very important. Firstly, the thesis focuses on the protection of industrial designs under the Copyright Act. After reviewing applied art regulations in many countries, this thesis thinks that no matter the design is patented or not, as long as it meets the “Original” element, then it should be protected by the Copyright Act. The view in the past was that “only handmade art craft shall be protected by the Copyright Act, excluding the protection for machine-made industrial designs,” and this thesis believes that such view should be abandoned. To explain the “Original” element, one might start with the view of “creative possibilities,” and could find the balance between encouraging culture development and avoiding monopolism. Secondly, the thesis looks at the protection for industrial designs under the Fair Trade Act. From the view of protecting competition order, if an enterprise continues investing in advertising and marketing to make an industrial design well-known, then the industrial design should be protected by both the Design Patent and the Fair Trade Act. The double protection is to respond to the enterprises’ and consumers’ trusts on such industrial design patent and prevent confusion. In addition, it usually takes a long time before a characterization of an industrial design reaches the level of “well-known” or before an industrial design gets patented. In order to avoid dead copy of an industrial design by other enterprises during such legal window period, this thesis thinks that we should reference to the Japan Control Law of Injustice Access for the protection against dead copy during the window period. Regarding the design patent protection, the identification of design patent infringement has many problems in practical operation. Therefore, this thesis intends to compare Taiwan’s and other countries’ regulations and to look into the opinions of practitioners, and then provides advice. As for the “excluding functional feature” when defining the protection range of a patent application, this thesis looked into the development of United States Law and found that excluding functional features from a drawing would make the drawing fragmented and partial, violating the overall impression principle. Hence, this thesis believes that functional features should be retained in the drawing and be observed along with other features, or be analyzed by proportional weight, in order to take into account both “overall impression principle” and “reducing the effect of functional features as much as possible”. As for the infringement identification, firstly, this thesis believes that as the single novelty point test is against overall impression principle, it should not be adopted. Secondly, the subject of patent infringement test should be ordinary consumers who are familiar with prior art. Thirdly, after reviewing the design patent infringement tests of United States, European Union and Japan, this thesis adopts European Union’s regulations. After factoring in the freedom of design, this thesis analyses proportionally the similarities and differences of these features. This method is based on a more objective quantitative criterion and should reflect the functional features’ limitation to the freedom of design.
Subjects
Design Patent
Copyright Act
applied art
characterization
well-known
dead copy
design patent infringement test
exclude functional feature
design patent infringement interviews
Type
thesis
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