外觀設計功能性特征的判斷標準研究
發(fā)布時間：2019-05-24 11:58
【摘要】：在傳統(tǒng)觀念中,外觀設計專利保護的范圍僅限于產(chǎn)品的外觀形狀,不包括產(chǎn)品的功能,在專利授權案件或侵權案件中應當將外觀設計的功能排除在保護范圍之外。然而,工業(yè)產(chǎn)品具有功能是進行外觀設計的前提,產(chǎn)品的功能不可避免會對產(chǎn)品的設計特征造成限制并進而影響產(chǎn)品的外觀。外觀設計天然具有復合性特質(zhì),兼具功能因素與裝飾因素,各國對外觀設計保護的立法規(guī)定就體現(xiàn)了這一點。對于裝飾因素的考量,歷來是司法實踐的難點,在實務中已經(jīng)降低了對"裝飾性(美感)"的程度要求,不再要求外觀設計的美感程度達到藝術作品的審美高度。與此同時,作為與裝飾因素相對的功能因素,則成為外觀設計專利糾紛案件的審判重點。功能因素作為外觀設計的一個重要組成部分,完全地將其與裝飾因素進行區(qū)分并排除在保護范圍之外并不具有可行性,但是將功能因素中的功能性特征區(qū)分出來卻符合外觀設計的本質(zhì)及立法目的。實踐中采用的判斷標準——"功能唯一限定原則"存在一定的局限性,本文試圖通過對各國判例實務經(jīng)驗的研究,系統(tǒng)論述分析功能性特征的定義、類別以及判斷方法,借鑒其他國家在認定功能性特征上的經(jīng)驗,對"功能唯一限定原則"進行修正完善,將外觀設計中的功能性特征類型化,并完善具體的適用規(guī)則,以期為該問題的解決提供新的思路和路徑。從行文結構來看,本文分為五個部分展開:第一部分是最高人民法院關于外觀設計功能性特征的最新觀點與實務指導。本部分開門見山,以"高儀股份公司與浙江健龍衛(wèi)浴有限公司侵害外觀設計專利權糾紛再審案"為例,引出我國實務界關于外觀設計中功能性特征判定的爭議,涉及功能性特征判斷問題的案件在實務中時有發(fā)生,也是專利審判實務的重難點。第二部分主要對外觀設計的復合性特征進行探討,討論了外觀設計保護的正當性基礎。外觀設計作為一種特殊的智力成果,自身具有一定的特殊性,兼有功能因素與裝飾因素,在法律上存在交叉保護的情況,但是其本身具有獨立的法律地位,理應得到保護。"裝飾性(美感)"是外觀設計保護的核心,但是如何認定這一要件卻存在困難,實務中已經(jīng)降低了對外觀設計美感標準的程度要求,而功能因素則成為外觀設計糾紛案件的主要爭議點與裁判難點。第三部分對外觀設計中的功能因素進行了系統(tǒng)研究,對功能因素進行區(qū)分,并以美國的司法實踐做法為典范,探討實務中對功能因素的態(tài)度演變,外觀設計中含有功能因素但不是純功能性的設計特征能夠獲得授權保護。美國試圖將外觀設計中的功能因素與裝飾因素徹底區(qū)分,但這種做法引起了極大爭議,也不具有實踐價值,但是對功能因素中的功能性特征進行判斷分離并排除在保護范圍之外卻具有可行性。第四部分對功能性特征的判斷標準——"功能唯一限定原則"進行了分析,盡管產(chǎn)品的外觀上體現(xiàn)功能,但是如果實現(xiàn)該功能的具體外觀特征并非唯一,就應當考慮是否予以保護。"功能唯一限定原則"在歐美的實踐中具體成了若干項的規(guī)則,替代性方案(設計空間)的考察成為具體適用這一原則的重要規(guī)則。當然,這一原則本身也存在諸多不足與爭議,本文通過梳理分析這些問題,吸收其他國家的經(jīng)驗,對這一原則進行修正與改善。第五部分在前述分析的基礎上,本文試圖探索一條適合我國國情的功能性特征判斷的路徑,對于界定原則、功能性特征的類型、判斷主體都作出了新的建構,以期為我國外觀設計中功能性特征的判斷標準提供相應的借鑒和參考。
[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.
【學位授予單位】：南京大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D923.42
，
本文編號：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.
【學位授予單位】：南京大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D923.42
，
本文編號：2484842
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