| Guiding Case No. 85 of the Supreme People's Court: Grohe Joint-Stock Company v. Zhejiang Jianlong Sanitary Ware Co., Ltd. | | 指导案例85号：高仪股份公司诉浙江健龙卫浴有限公司侵害外观设计专利权纠纷案 |
| (Issued on March 6, 2017 as deliberated and adopted by the Judicial Committee of the Supreme People's Court) | | （最高人民法院审判委员会讨论通过 2017年3月6日发布） |
| Keywords | |
【关键词】 |
| civil; infringement upon design patent; design features; functional features; overall visual effect | | 民事/侵害外观设计专利/设计特征/功能性特征/整体视觉效果 |
| Key Points of Judgment | | 【裁判要点】 |
| 1. The design features of a patented design reflect not only its innovations different from existing designs but the innovative contributions made by the designer to existing designs. If the alleged infringing design does not include all design features of the patented design different from existing designs, in general, it may be presumed that the alleged infringing design is not similar to the patented design. | | 1.授权外观设计的设计特征体现了其不同于现有设计的创新内容，也体现了设计人对现有设计的创造性贡献。如果被诉侵权设计未包含授权外观设计区别于现有设计的全部设计特征，一般可以推定被诉侵权设计与授权外观设计不近似。 |
| 2. To identify a design feature, the patentee shall bear the burden of proof for the design feature he or it claims. The people's court shall, on the basis of soliciting cross-examination opinions from all parties, fully examine evidence and legally determine the design feature of the patented design. | | 2.对设计特征的认定，应当由专利权人对其所主张的设计特征进行举证。人民法院在听取各方当事人质证意见基础上，对证据进行充分审查，依法确定授权外观设计的设计特征。 |
| 3. The identification of a functional design feature depends on whether the design is only determined by a specific function for an ordinary consumer of a design product and it is unnecessary to consider whether the design is aesthetic. A functional design feature does not have an obvious impact on the overall visual effect of the design. For the impact of a design feature that is both functional and decorative on the overall visual effect, the degree of decorativeness shall be taken into consideration. The more decorative the design feature is, the greater the impact on the overall visual effect is and vice versa. | | 3.对功能性设计特征的认定，取决于外观设计产品的一般消费者看来该设计是否仅仅由特定功能所决定，而不需要考虑该设计是否具有美感。功能性设计特征对于外观设计的整体视觉效果不具有显著影响。功能性与装饰性兼具的设计特征对整体视觉效果的影响需要考虑其装饰性的强弱，装饰性越强，对整体视觉效果的影响越大，反之则越小。 |
| Legal Provisions | | 【相关法条】 |
| Paragraph 2 of Article 59 of the Patent Law of the People's Republic of China | | 《中华人民共和国专利法》第59条第2款 |
| Basic Facts | | 【基本案情】 |
| Grohe Joint-Stock Company (hereinafter referred to as “Grohe Company”) was the right holder of the design patent of “hand-held shower nozzle (No. A4284410X2)” and such design patent was legal and effective. In November 2012, Grohe Company filed a lawsuit against Zhejiang Jianlong Sanitary Ware Co., Ltd. (hereinafter referred to as “Gllon Company”) on the ground that the Liya Series of sanitary products produced, sold, and offered for sale by Gllon Company infringed upon the design patent of “hand-held shower nozzle” of Grohe Company and it requested the Intermediate People's Court of Taizhou City, Zhejiang Province to order that Gllon Company should immediately cease the alleged infringing act, destroy the infringing products in stock and moulds for producing such infringing products, and pay Grohe Company CNY200,000 for its economic loss. Upon comparison in the court trial of first instance, it was found that the alleged infringing products produced by Gllon Company and the design patent involved of Grohe Company were identical in the following aspects: Both of them were like products. In general, both of them consisted of the nozzle and the handle. The shape of the drainage surface of the alleged infringing product was the same as that of the patent involved. Drainage holes were distributed in the radial pattern in the area with semicircles at both ends and a rectangle in the middle, and the area had arc-shaped margins. The differences between them were as follows: (1) there was slope surface around the nozzle of the alleged infringing product and such slope surface was tilted from the reverse side to the water outlet, while the front view and the left view of the patented product involved showed that there was arc surface around the nozzle; (2) the drainage surface of the nozzle of the alleged infringing product and the panel were divided only by a line, while the drainage surface on the nozzle of the patented product involved and the panel were divided by a banding formed by two lines; (3) there was slight difference in the layouts of drainage holes on the drainage surface of nozzles of the alleged infringing product and the patented product involved; (4) there was a switch on the handle of the patented product involved, while the alleged infringing product did not have such design; (5) although there was a certain angle in the junction of the central nozzle of the patented product involved and the handle, the angle was small and it was almost a straight line, while the angle formed at the junction of the nozzle of the alleged infringing product and the handle was bigger; (6) seen from the upward views of the patented product involved and the alleged infringing product, the handle bottom of the former was round, while that of the latter was a fan-shaped arc. The lower part of the former was a cylinder, which was gradually shrunk and flattened to a flat ellipsoid to the direction of the nozzle junction, while the lower handle of the alleged infringing product was a fan-shaped cylinder and the transitional area between the handle and the nozzle junction was also a fan-shaped cylinder, and there were curved ledges on the central handle in the transitional area; (7) there was an arc-shaped decoration line at the bottom of the handle of the alleged infringing product and such line connected the handle bottom with the back of the product, while there was no such design at the bottom of the handle of the patented product involved; and (8) the length proportion of the nozzle and the handle of the patented product involved was different from that of the alleged infringing product and the arc-shaped surfaces at the junctions of the nozzles and handles of both products were also different. | | 高仪股份公司（以下简称高仪公司）为“手持淋浴喷头（No.A4284410X2）”外观设计专利的权利人，该外观设计专利现合法有效。2012年11月，高仪公司以浙江健龙卫浴有限公司（以下简称健龙公司）生产、销售和许诺销售的丽雅系列等卫浴产品侵害其“手持淋浴喷头”外观设计专利权为由提起诉讼，请求法院判令健龙公司立即停止被诉侵权行为，销毁库存的侵权产品及专用于生产侵权产品的模具，并赔偿高仪公司经济损失20万元。经一审庭审比对，健龙公司被诉侵权产品与高仪公司涉案外观设计专利的相同之处为：二者属于同类产品，从整体上看，二者均是由喷头头部和手柄两个部分组成，被诉侵权产品头部出水面的形状与涉案专利相同，均表现为出水孔呈放射状分布在两端圆、中间长方形的区域内，边缘呈圆弧状。两者的不同之处为：1.被诉侵权产品的喷头头部四周为斜面，从背面向出水口倾斜，而涉案专利主视图及左视图中显示其喷头头部四周为圆弧面；2.被诉侵权产品头部的出水面与面板间仅由一根线条分隔，涉案专利头部的出水面与面板间由两条线条构成的带状分隔；3.被诉侵权产品头部出水面的出水孔分布方式与涉案专利略有不同；4.涉案专利的手柄上有长椭圆形的开关设计，被诉侵权产品没有；5.涉案专利中头部与手柄的连接虽然有一定的斜角，但角度很小，几乎为直线形连接，被诉侵权产品头部与手柄的连接产生的斜角角度较大；6.从涉案专利的仰视图看，手柄底部为圆形，被诉侵权产品仰视的底部为曲面扇形，涉案专利手柄下端为圆柱体，向与头部连接处方向逐步收缩压扁呈扁椭圆体，被诉侵权产品的手柄下端为扇面柱体，且向与喷头连接处过渡均为扇面柱体，过渡中的手柄中段有弧度的突起；7.被诉侵权产品的手柄底端有一条弧形的装饰线，将手柄底端与产品的背面连成一体，涉案专利的手柄底端没有这样的设计；8.涉案专利头部和手柄的长度比例与被诉侵权产品有所差别，两者的头部与手柄的连接处弧面亦有差别。 |
| Judgment | | 【裁判结果】 |
| On March 5, 2013, the Intermediate People's Court of Taizhou City, Zhejiang Province rendered a civil judgment (No. 573 [2012], First, Civil Division, IPC, Taizhou) that the claims of Grohe Company should be dismissed. Grohe Company refused to accept the judgment and appealed. On September 27, 2013, the Higher People's Court of Zhejiang Province rendered a civil judgment (No. 255 [2013], Final, Civil Division, HPC, Zhejiang) that: (1) the civil judgment (No. 573 [2012], First, Civil Division, IPC, Taizhou) rendered by the Intermediate People's Court of Taizhou City, Zhejiang Province should be set aside; (2) Gllon Company should immediately cease the acts of producing, offering for sale, and selling products infringing upon Grohe Company's design patent of “hand-held shower nozzle,” and destroy the infringing products in stock; (3) Gllon Company should pay CNY100,000 to Grohe Company as compensation for Grohe Company's economic loss (including reasonable expenses assumed by Grohe Company for stopping the infringement); and (4) other claims of Grohe Company should be dismissed. Gllon Company refused to accept the judgment and filed an application for retrial. On August 11, 2015, the Supreme People's Court rendered a civil judgment (No. 23 [2015], Civil Petition, Supreme People's Court) that: (1) the judgment of second instance should be set aside; and (2) the judgment of first instance should be affirmed. | | 浙江省台州市中级人民法院于2013年3月5日作出（2012）浙台知民初字第573号民事判决，驳回高仪股份公司诉讼请求。高仪股份公司不服，提起上诉。浙江省高级人民法院于2013年9月27日作出（2013）浙知终字第255号民事判决：1.撤销浙江省台州市中级人民法院（2012）浙台知民初字第573号民事判决；2.浙江健龙卫浴有限公司立即停止制造、许诺销售、销售侵害高仪股份公司“手持淋浴喷头”外观设计专利权的产品的行为，销毁库存的侵权产品；3. 浙江健龙卫浴有限公司赔偿高仪股份公司经济损失（含高仪股份公司为制止侵权行为所支出的合理费用）人民币10万元；4.驳回高仪股份公司的其他诉讼请求。浙江健龙卫浴有限公司不服，提起再审申请。最高人民法院于2015年8月11日作出（2015）民提字第23号民事判决：1.撤销二审判决；2.维持一审判决。 |
| Judgment's Reasoning | | 【裁判理由】 |
| In the effective judgment, the Supreme People's Court held that the issue of this case was whether the design of the alleged infringing product fell into the protection scope of the design patent involved. | | 法院生效裁判认为，本案的争议焦点在于被诉侵权产品外观设计是否落入涉案外观设计专利权的保护范围。 |
Paragraph 2 of Article 59 of the Patent Law prescribed that “The protection scope of a design patent shall be subject to the design of a product in drawings or photographs and brief descriptions may be used for interpreting the design of the product as expressed in such drawings or photographs.” Article 8 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Cases regarding Patent Infringement Dispute (hereinafter referred to as the “Interpretation on Patent Infringement Dispute Cases”) provides that “Where a design identical or similar to a design patent is applied to a type of products identical or similar to the products carrying the design patent, the people's court shall determine that the alleged infringing design falls into the protection scope of the design patent as provided for in paragraph 2 of Article 59 of the Patent Law.” Article 10 thereof provides that “The people's court shall determine whether designs are identical or similar based on an ordinary consumer's knowledge and cognitive ability to a product carrying the design patent.” In this case, both the alleged infringing product and the product carrying the patented design involved were shower nozzles. Therefore, the key issue in this case was whether the design of the alleged infringing product was identical or similar to the product carrying the patented design involved for an ordinary consumer. The following four aspects were involved:
．．．．．． | | 专利法第五十九条第二款规定：“外观设计专利权的保护范围以表示在图片或者照片中的该产品的外观设计为准，简要说明可以用于解释图片或者照片所表示的该产品的外观设计。”《最高人民法院关于审理侵犯专利权纠纷案件应用法律若干问题的解释》（以下简称《侵犯专利权纠纷案件解释》）第八条规定：“在与外观设计专利产品相同或者相近种类产品上，采用与授权外观设计相同或者近似的外观设计的，人民法院应当认定被诉侵权设计落入专利法第五十九条第二款规定的外观设计专利权的保护范围”；第十条规定：“人民法院应当以外观设计专利产品的一般消费者的知识水平和认知能力，判断外观设计是否相同或者近似。”本案中，被诉侵权产品与涉案外观设计专利产品相同，均为淋浴喷头类产品，因此，本案的关键问题是对于一般消费者而言，被诉侵权产品外观设计与涉案授权外观设计是否相同或者近似，具体涉及以下四个问题：
．．．．．． |
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