An International Guide to
Patent Case Management for Judges

4.8.3 Ordinary consumers

A design patent does not protect the technical solution but the innovation of the visual effect in product design. Therefore, the grant, confirmation or infringement of a design patent is determined based on ordinary consumers’ understanding of the design product. In this respect, Article 10 of the Interpretation of Patent Infringement Dispute Cases stipulates the following: “The people’s court shall determine whether designs are identical or similar based on ordinary consumers’ knowledge level and cognitive ability as to a product having a design patent.” Articles 14–15 and 20 of the Provisions on Patent Grant and Confirmation are all related to ordinary consumers. Each category of products has a specific consumer group, and not all products share the same consumer group; which group constitutes the “ordinary consumers” is determined according to the actual purchase and use of the product.

In an administrative dispute case over the invalidation of design patent rights, Honda Technology Research Industry Co. v. China National Intellectual Property Administration,¹⁶⁸ the Supreme People’s Court held that the term “ordinary consumers” refers to consumers that have a commonsense understanding of the design status of the same or similar categories of design products and have a certain ability to distinguish the shape, pattern and color of the design products. However, such consumers would not notice minor changes in the shape, pattern and color of the products. Consumers having a “commonsense understanding” means that they have the ability to know the design status of relevant products but are not skilled in the design; the term does not mean that they have only an elementary or simple understanding.

Article 14 paragraph 1 of the Provisions on Patent Grant and Confirmation stipulates that, in determining the knowledge level and cognitive ability of ordinary consumers regarding a product with a design patent, the court must consider the design space or the designer’s freedom of creation of the product on the date of application. If the design space is relatively large, the court may determine that it is generally not easy for ordinary consumers to notice minor differences among different designs; if the design space is relatively small, the court may determine that it is generally easy for ordinary consumers to notice minor differences among different designs. This provision is consistent with Article 14 of the Interpretation (II) of Patent Infringement Dispute Cases.

According to Article 14 paragraph 2 of the Provisions on Patent Grant and Confirmation,

[i]n determining the design space provided for in [Article 14 paragraph 1], the people’s court may comprehensively consider the following factors:

1. (1) The function and use of the product;
2. (2) The overall conditions of the prior design;
3. (3) Usual design;
4. (4) Compulsory provisions of laws and administrative regulations;
5. (5) National and industrial technical standards; and
6. (6) Other factors that need to be considered.

In an administrative dispute case over the invalidation of the design patent of Zhejiang Jin Fei Machinery Co. v. Zhejiang Wanfeng Motorcycle Co.,¹⁶⁹ the Supreme People’s Court held that the design freedom of designers in the field of specific products is usually restricted and affected by many factors, such as prior designs, technology, laws and concepts. With the accumulation of prior designs, technological progress, legal changes and conceptual changes, the design space may change. In a patent invalidation declaration procedure, when considering the design space of a design product, the design space at the date of the patent application is applicable.