我国外观设计专利授权标准研究
发布时间：2018-10-12 21:05
【摘要】：人类的文明史就是一部设计史。在人类自己制造的世界中，无数的产品和设计都凝聚着人类的智慧和努力，因此智慧成果应该受到法律的保护。在知识产权这种特定的权利上法律的保护表现为一种垄断性，一种排他的权利。但是这种权利的授予必须要谨慎，因为设计者的成果也在之前他人的劳动成果或者社会公众利益上进行的创新，所以对他的授权不能损害他人的合法权利或社会公众的利益并在此基础上达到一个利益平衡的状态。虽然我国对专利进行制度性的保护已有三十余年，外观设计的申请量与授权量均排名世界第一，，但毕竟保护历史较短暂，自身经验不够丰富，更多的是借鉴与移植于别的国家，在实际实施过程中，自身存在不少局限性以及亟待解决的问题。 从对外观设计的定义及作用开始，阐明我国外观设计立法的保护客体。通过对我国现行外观设计授权标准的展开，对我国的外观设计授权标准形成一个初步的认识，并解释笔者为何不赞成将“工业实用性”和“富有美感”纳入外观设计专利的授权标准。在对国外的授权标准以及研究现状做一些初步的描述的基础上，分析其新颖性和创造性，借他山之石以攻玉，在这个基础上以我国外观设计专利的一些侵权与授权案例进行分析，以案说法，在判决中分析何谓外观设计专利的新颖性标准及创造性标准，如新颖性的判断、创造性中“明显区别”的判断以及对“与他人在申请日以前已经取得的合法权利相冲突”的理解与评判，并对“明显区别”提出自己的看法。在最后我们阐述的方面则是我国现行外观设计专利的实质授权所面临的解析及建议。如新颖性的判断、创造性中“明显区别”的判断以及对“与他人在申请日以前已经取得的合法权利相冲突”的理解与评判。最后则是对我国外观设计制度提出了一些建议，包括坚持绝对新颖性标准，修改创造性标准的判断主体，以及对工业产品分类实行实质审查制度与非实质审查制度。
[Abstract]:The history of human civilization is a history of design. In the world made by human beings, countless products and designs condense the wisdom and effort of human beings, so the fruits of wisdom should be protected by law. The legal protection of intellectual property rights is a monopoly and an exclusive right. But this right must be granted with caution, because the designer's achievements are also innovative in the previous work of others or in the public interest of society. Therefore, his authorization should not impair the legitimate rights of others or the interests of the public and achieve a balance of interests on this basis. Although our country has carried on the institutional protection to the patent for more than 30 years, the number of applications for the design and the amount of authorization are ranked first in the world, but after all, the history of protection is relatively short, the experience is not rich enough, more is to learn from and transplant to other countries. In the actual implementation process, there are many limitations and problems to be solved. Starting with the definition and function of design, this paper expounds the protection object of our country's design legislation. Through the development of the current design authorization standards in China, a preliminary understanding of the design authorization standards in China has been formed. The author also explains why the author does not agree that industrial utility and aesthetic sense should be included in the licensing standards of design patents. On the basis of a preliminary description of the standards of authorization abroad and the present research situation, this paper analyzes its novelty and creativity, and takes advantage of the stone of other mountains to attack the jade. On this basis, some cases of infringement and authorization of design patents in China are analyzed, and in the judgment of cases, the criteria of novelty and creativity of design patents, such as the judgment of novelty, are analyzed. The judgment of "obvious difference" in creativity, the understanding and judgment of "conflict with the legitimate rights obtained by others before the date of application", and the view of "obvious difference" are put forward. In the end, we explain the analysis and suggestion of the actual license of design patent in our country. For example, the judgment of novelty, the judgment of "obvious difference" in creativity, and the understanding and judgment of "conflict with the legitimate rights obtained by others before the date of filing". Finally, some suggestions are put forward to the design system of our country, including adhering to the criterion of absolute novelty, modifying the main body of judgement of creative standard, and carrying out the system of substantive and non-substantial examination on the classification of industrial products.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.42
[Abstract]:The history of human civilization is a history of design. In the world made by human beings, countless products and designs condense the wisdom and effort of human beings, so the fruits of wisdom should be protected by law. The legal protection of intellectual property rights is a monopoly and an exclusive right. But this right must be granted with caution, because the designer's achievements are also innovative in the previous work of others or in the public interest of society. Therefore, his authorization should not impair the legitimate rights of others or the interests of the public and achieve a balance of interests on this basis. Although our country has carried on the institutional protection to the patent for more than 30 years, the number of applications for the design and the amount of authorization are ranked first in the world, but after all, the history of protection is relatively short, the experience is not rich enough, more is to learn from and transplant to other countries. In the actual implementation process, there are many limitations and problems to be solved. Starting with the definition and function of design, this paper expounds the protection object of our country's design legislation. Through the development of the current design authorization standards in China, a preliminary understanding of the design authorization standards in China has been formed. The author also explains why the author does not agree that industrial utility and aesthetic sense should be included in the licensing standards of design patents. On the basis of a preliminary description of the standards of authorization abroad and the present research situation, this paper analyzes its novelty and creativity, and takes advantage of the stone of other mountains to attack the jade. On this basis, some cases of infringement and authorization of design patents in China are analyzed, and in the judgment of cases, the criteria of novelty and creativity of design patents, such as the judgment of novelty, are analyzed. The judgment of "obvious difference" in creativity, the understanding and judgment of "conflict with the legitimate rights obtained by others before the date of application", and the view of "obvious difference" are put forward. In the end, we explain the analysis and suggestion of the actual license of design patent in our country. For example, the judgment of novelty, the judgment of "obvious difference" in creativity, and the understanding and judgment of "conflict with the legitimate rights obtained by others before the date of filing". Finally, some suggestions are put forward to the design system of our country, including adhering to the criterion of absolute novelty, modifying the main body of judgement of creative standard, and carrying out the system of substantive and non-substantial examination on the classification of industrial products.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.42
【参考文献】
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