1. Is it illegal to apply for an invention patent with appearance patent?
Appearance patent cannot be used as Application for an invention patent is a violation of regulations, and the patent management department will reject the patent application.
"Patent Law of the People's Republic of China"
Article 2 Inventions referred to in this Law Creation refers to inventions, utility models and designs.
Invention refers to a new technical solution proposed for a product, method or improvement thereof.
Utility model refers to a new technical solution proposed for the shape, structure or combination of a product that is suitable for practical use.
Appearance design refers to the aesthetic and suitable design of the overall or partial shape, pattern or combination of the product, as well as the combination of color, shape and pattern. New designs for industrial applications.
Article 40: If no reason for rejection of a utility model or design patent application is found after preliminary examination, the patent administration department of the State Council shall make a decision to grant a utility model patent or design patent. The decision on the design patent right shall be issued with a corresponding patent certificate, and shall be registered and announced at the same time. Utility model patent rights and design patent rights take effect from the date of announcement.
2. Design patent is infringed How to protect your rights
In life, to determine whether the other party has infringed the design patent rights, the first step is to make it clear that the design patent is subject to The scope of protected products shall be based on the design of the patented product shown in pictures or photos. A brief description of the design can be used for the appearance.Design scope of protection.
To cope with patent infringement, the specific relief methods are as follows:
1 , Self-reconciliation
means that the infringer and the infringed party sit down together and resolve the matter calmly. Generally, an agreement is reached, and the infringed party of the design patent can claim damages, or ask the infringer to pay a certain design royalties, etc.
2. Apply to the patent management authority for mediation
Generally if a settlement agreement cannot be reached, There is no need to waste time, and you can still go to the relevant departments or go to the government to solve the problem from the beginning. If it is handled by the patent administrative department, the infringer may be ordered to stop infringement and other penalties.
3. Sue in court
It can be decided at any time to take the litigation route, no need It can only be used after mediation between the parties, mediation by the patent department, etc. If you file a lawsuit in court, the infringed party can request compensation for losses.
In addition, rights holders should submit the following evidence when defending their rights:
1. The "design key points drawing" of the design, which can illustrate the original parts and content protected by the design. If the patentee has submitted the "design key points drawing" to the Chinese national patent administration department when applying for a design patent, the patent file can As evidence for identifying the key points of the design.
2. If the design patentee requests color protection, he must provide relevant evidence recognized by the Chinese national patent administration department. This can be used to determine the design scope of protection.
Through the above analysis, we know that according to the provisions of the Patent Law, the application conditions for design patents and invention patents are different. Therefore, when applying for a design patent, It is illegal to apply for an invention patent, and the patent management department will reject the patent application. If you need legal help, readers can go to the Legal Savior Network for consultation.
