外观设计功能性特征的判断标准研究
发布时间：2019-05-24 11:58
【摘要】：在传统观念中,外观设计专利保护的范围仅限于产品的外观形状,不包括产品的功能,在专利授权案件或侵权案件中应当将外观设计的功能排除在保护范围之外。然而,工业产品具有功能是进行外观设计的前提,产品的功能不可避免会对产品的设计特征造成限制并进而影响产品的外观。外观设计天然具有复合性特质,兼具功能因素与装饰因素,各国对外观设计保护的立法规定就体现了这一点。对于装饰因素的考量,历来是司法实践的难点,在实务中已经降低了对"装饰性(美感)"的程度要求,不再要求外观设计的美感程度达到艺术作品的审美高度。与此同时,作为与装饰因素相对的功能因素,则成为外观设计专利纠纷案件的审判重点。功能因素作为外观设计的一个重要组成部分,完全地将其与装饰因素进行区分并排除在保护范围之外并不具有可行性,但是将功能因素中的功能性特征区分出来却符合外观设计的本质及立法目的。实践中采用的判断标准——"功能唯一限定原则"存在一定的局限性,本文试图通过对各国判例实务经验的研究,系统论述分析功能性特征的定义、类别以及判断方法,借鉴其他国家在认定功能性特征上的经验,对"功能唯一限定原则"进行修正完善,将外观设计中的功能性特征类型化,并完善具体的适用规则,以期为该问题的解决提供新的思路和路径。从行文结构来看,本文分为五个部分展开:第一部分是最高人民法院关于外观设计功能性特征的最新观点与实务指导。本部分开门见山,以"高仪股份公司与浙江健龙卫浴有限公司侵害外观设计专利权纠纷再审案"为例,引出我国实务界关于外观设计中功能性特征判定的争议,涉及功能性特征判断问题的案件在实务中时有发生,也是专利审判实务的重难点。第二部分主要对外观设计的复合性特征进行探讨,讨论了外观设计保护的正当性基础。外观设计作为一种特殊的智力成果,自身具有一定的特殊性,兼有功能因素与装饰因素,在法律上存在交叉保护的情况,但是其本身具有独立的法律地位,理应得到保护。"装饰性(美感)"是外观设计保护的核心,但是如何认定这一要件却存在困难,实务中已经降低了对外观设计美感标准的程度要求,而功能因素则成为外观设计纠纷案件的主要争议点与裁判难点。第三部分对外观设计中的功能因素进行了系统研究,对功能因素进行区分,并以美国的司法实践做法为典范,探讨实务中对功能因素的态度演变,外观设计中含有功能因素但不是纯功能性的设计特征能够获得授权保护。美国试图将外观设计中的功能因素与装饰因素彻底区分,但这种做法引起了极大争议,也不具有实践价值,但是对功能因素中的功能性特征进行判断分离并排除在保护范围之外却具有可行性。第四部分对功能性特征的判断标准——"功能唯一限定原则"进行了分析,尽管产品的外观上体现功能,但是如果实现该功能的具体外观特征并非唯一,就应当考虑是否予以保护。"功能唯一限定原则"在欧美的实践中具体成了若干项的规则,替代性方案(设计空间)的考察成为具体适用这一原则的重要规则。当然,这一原则本身也存在诸多不足与争议,本文通过梳理分析这些问题,吸收其他国家的经验,对这一原则进行修正与改善。第五部分在前述分析的基础上,本文试图探索一条适合我国国情的功能性特征判断的路径,对于界定原则、功能性特征的类型、判断主体都作出了新的建构,以期为我国外观设计中功能性特征的判断标准提供相应的借鉴和参考。
[Abstract]:In the traditional concept, the scope of the patent protection of the design is limited to the appearance shape of the product, does not include the function of the product, and the function of the design should be excluded from the protection range in the patent authorized case or the infringement case. However, the function of the industrial product is the premise of the design, and the function of the product inevitably limits the design characteristics of the product and further affects the appearance of the product. The natural appearance of the design is of complex nature, with both functional and decorative factors, and the national legislation on the protection of the design is reflected in this point. The consideration of the decorative factors has always been the difficult point of the judicial practice. In practice, the degree of the "Ornamental (aesthetic)" is reduced, and the aesthetic degree of the design is no longer required to reach the aesthetic height of the art of art. At the same time, as the function factor relative to the decoration factor, it becomes the trial focus of the patent dispute case of the design. As an important part of the design, the functional factors are completely distinguished from the decorative factors and excluded from the scope of protection, but the functional characteristics in the functional factors are distinguished from the nature of the design and the legislative purpose. The judgment standard _ "the only principle of the function of function" used in practice has some limitations. In this paper, we try to study the definition, the category and the judgment method of the functional features through the study of the practical experience of the case, and draw on the experience of other countries in identifying the functional characteristics. To improve the "the only principle of the function of function", the functional characteristics in the design are typed, and the specific application rules are improved, with a view to providing new ideas and paths for the solution of the problem. From the structure of writing, this paper is divided into five parts: the first part is the most up-to-date and practical guidance of the Supreme People's Court on the functional characteristics of the design. This part is open to the mountain, taking the "Re-Trial of the Patent Dispute on the Infringement of the Design Patent Right of the High-tech Co., Ltd. and the Zhejiang Jianlong" as an example, the dispute about the functional characteristics of the design of our country is led out, and the cases involving the judgment of the functional characteristics occur in practice, and also the difficult point of the patent trial practice. The second part mainly discusses the compound character of the design, and discusses the validity of the design protection. The design, as a special intellectual achievement, has some special characteristics, and has both functional and decorative factors, and there is cross-protection in the law, but its own legal status should be protected. The "Ornamental (aesthetic)" is the core of the design protection, but how to identify this element is difficult. In practice, the degree of the aesthetic standard of the design has been reduced, and the functional factors are the main points of the dispute and the difficulty of the referees. In the third part, the functional factors in the design are systematically studied, the functional factors are distinguished, and the attitude and evolution of the functional factors in the practice are discussed based on the American judicial practice. The design features that contain functional factors but not pure functionality in the design are able to obtain authorization protection. The United States is trying to make a complete distinction between the functional and decorative factors in the design, but the practice has caused great controversy and has no practical value, but it is feasible to judge and separate the functional features in the functional factors and to exclude the scope of the protection. The fourth part analyzes the judgment standard _ "the only principle of the function of function" of the functional features, although the appearance of the product shows the function, but if the specific appearance characteristic of the function is not unique, it should be considered whether to protect it. The only defined principle of function is a number of rules in the practice of European and American, and the study of alternative scheme (design space) has become an important rule for the application of this principle. This principle, of course, also has a number of shortcomings and disputes. This paper, through the analysis of these problems, absorbs the experience of other countries, and corrects and improves the principle. The fifth part, on the basis of the above-mentioned analysis, tries to explore a path which is suitable for the functional characteristic judgment of the national conditions of our country, and to define the principle, the type of the functional characteristic and the judgment subject to make a new construction, So as to provide corresponding reference and reference for the judgment standard of the functional characteristics in the design of our country.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.42
，
本文编号：2484842
[Abstract]:In the traditional concept, the scope of the patent protection of the design is limited to the appearance shape of the product, does not include the function of the product, and the function of the design should be excluded from the protection range in the patent authorized case or the infringement case. However, the function of the industrial product is the premise of the design, and the function of the product inevitably limits the design characteristics of the product and further affects the appearance of the product. The natural appearance of the design is of complex nature, with both functional and decorative factors, and the national legislation on the protection of the design is reflected in this point. The consideration of the decorative factors has always been the difficult point of the judicial practice. In practice, the degree of the "Ornamental (aesthetic)" is reduced, and the aesthetic degree of the design is no longer required to reach the aesthetic height of the art of art. At the same time, as the function factor relative to the decoration factor, it becomes the trial focus of the patent dispute case of the design. As an important part of the design, the functional factors are completely distinguished from the decorative factors and excluded from the scope of protection, but the functional characteristics in the functional factors are distinguished from the nature of the design and the legislative purpose. The judgment standard _ "the only principle of the function of function" used in practice has some limitations. In this paper, we try to study the definition, the category and the judgment method of the functional features through the study of the practical experience of the case, and draw on the experience of other countries in identifying the functional characteristics. To improve the "the only principle of the function of function", the functional characteristics in the design are typed, and the specific application rules are improved, with a view to providing new ideas and paths for the solution of the problem. From the structure of writing, this paper is divided into five parts: the first part is the most up-to-date and practical guidance of the Supreme People's Court on the functional characteristics of the design. This part is open to the mountain, taking the "Re-Trial of the Patent Dispute on the Infringement of the Design Patent Right of the High-tech Co., Ltd. and the Zhejiang Jianlong" as an example, the dispute about the functional characteristics of the design of our country is led out, and the cases involving the judgment of the functional characteristics occur in practice, and also the difficult point of the patent trial practice. The second part mainly discusses the compound character of the design, and discusses the validity of the design protection. The design, as a special intellectual achievement, has some special characteristics, and has both functional and decorative factors, and there is cross-protection in the law, but its own legal status should be protected. The "Ornamental (aesthetic)" is the core of the design protection, but how to identify this element is difficult. In practice, the degree of the aesthetic standard of the design has been reduced, and the functional factors are the main points of the dispute and the difficulty of the referees. In the third part, the functional factors in the design are systematically studied, the functional factors are distinguished, and the attitude and evolution of the functional factors in the practice are discussed based on the American judicial practice. The design features that contain functional factors but not pure functionality in the design are able to obtain authorization protection. The United States is trying to make a complete distinction between the functional and decorative factors in the design, but the practice has caused great controversy and has no practical value, but it is feasible to judge and separate the functional features in the functional factors and to exclude the scope of the protection. The fourth part analyzes the judgment standard _ "the only principle of the function of function" of the functional features, although the appearance of the product shows the function, but if the specific appearance characteristic of the function is not unique, it should be considered whether to protect it. The only defined principle of function is a number of rules in the practice of European and American, and the study of alternative scheme (design space) has become an important rule for the application of this principle. This principle, of course, also has a number of shortcomings and disputes. This paper, through the analysis of these problems, absorbs the experience of other countries, and corrects and improves the principle. The fifth part, on the basis of the above-mentioned analysis, tries to explore a path which is suitable for the functional characteristic judgment of the national conditions of our country, and to define the principle, the type of the functional characteristic and the judgment subject to make a new construction, So as to provide corresponding reference and reference for the judgment standard of the functional characteristics in the design of our country.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.42
，
本文编号：2484842
本文链接：https://www.wllwen.com/falvlunwen/minfalunwen/2484842.html
