4.8.7 Infringement of design patent rights
With respect to the infringement of a design patent right, Article 11 paragraph 2 of the Patent Law stipulates the following: “After the grant of a design patent, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, for production or business purposes, manufacture, offer to sell, sell, or import the product incorporating the patentee’s patented design.” Among the types of acts infringing a design patent, “use” is not included.
According to Article 12 of the Interpretation of Patent Infringement Dispute Cases:
Where a product infringing a design patent right is used as a part or component for manufacturing and selling another product, the people’s court shall determine it as an act of selling as provided for in Article 11 of the Patent Law, unless the product which infringes the design patent only has a technical function in such other product.
The main consideration of this provision is that, when a product that infringes a design patent right is used as a part or component for manufacturing and selling another product, such activity is deemed to be selling, since use alone would not constitute an infringement of the design patent according to the Patent Law. However, because a design patent right protects the appearance of the product, if the part and component only play a technical function without producing any visual effect during the normal use of the final product, then selling infringement shall not be established.
In a case involving a dispute over the infringement of design patent rights, Ou Jieren v. Taizhou Jinshen Household Products Co.,178 it was recorded in the brief description of the patent, titled “aluminum profile,” that the picture to best indicate the key design elements was the main view, which showed the end face shape of the aluminum profile. The alleged infringing product was a glass sliding door. As a component of the glass sliding door, the aluminum profile was embedded with the glass on the sliding door as a whole, and the end face of the aluminum profile could not be observed under normal use, so the aluminum profile played only a technical function. Therefore, the act of using the aluminum profile as a part in the manufacture and selling of glass sliding doors was judged not to constitute infringement.