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Guiding Case No. 85: Grohe Joint-Stock Company v. Zhejiang Jianlong Sanitary Ware Co., Ltd. (Case about dispute over infringement upon design patent right)
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
【法宝引证码】

Guiding Case No. 85: 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: civil; infringement upon design patent; design features; functional features; overall visual effect 关键词 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离婚不离婚是人家自己的事.” 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: 专利法北京大学互联网法律中心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打遮阳伞就显得很娘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:
1. Design features of the patented design involved 一、关于涉案授权外观设计的设计特征
The legislative purpose of the design patent system is to protect aesthetic innovative industrial design schemes. A design may be granted a patent when it had identifiable innovative design different from existing designs and such innovative design was the design feature for granting a patent. Under normal circumstances, the designer of a design made innovations based on existing designs. For an existing design, a design to which a patent was granted generally has some features of the existing design and also features that are not identical or similar to the existing design, which makes the patented design innovative, so as to satisfy the condition for substantial patent granting as prescribed in Article 23 of the Patent Law: There is no conflicting application to the existing design; and as compared with the existing design or combination of the existing design features, the patented design has distinctive features. The descriptions on features that are not identical or similar to the existing design are design features of the patented design. Such features embody innovations made by the patented design, which are different from the existing design, and creative contributions the designer makes to the existing design. Due to the existence of design features, an ordinary consumer would easily differentiate the patented design from an existing design. Therefore, design features have significant impact on the overall visual effect of the product carrying the patented design. If the alleged infringing design did not include all design features based on which the patented design was different from the existing design, it may be generally presumed that the alleged infringing design and the patented design did not constitute similarity. 外观设计专利制度的立法目的在于保护具有美感的创新性工业设计方案,一项外观设计应当具有区别于现有设计的可识别性创新设计才能获得专利授权,该创新设计即是授权外观设计的设计特征。通常情况下,外观设计的设计人都是以现有设计为基础进行创新。对于已有产品,获得专利权的外观设计一般会具有现有设计的部分内容,同时具有与现有设计不相同也不近似的设计内容,正是这部分设计内容使得该授权外观设计具有创新性,从而满足专利法二十三条所规定的实质性授权条件:不属于现有设计也不存在抵触申请,并且与现有设计或者现有设计特征的组合相比具有明显区别。对于该部分设计内容的描述即构成授权外观设计的设计特征,其体现了授权外观设计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。由于设计特征的存在,一般消费者容易将授权外观设计区别于现有设计,因此,其对外观设计产品的整体视觉效果具有显著影响,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。
With respect to the identification of a design feature, in general, a patentee may record a design feature in the brief description or make a corresponding statement of the design feature in the procedure of patent granting confirmation or infringement. According to the evidence rule that “whoever raises a claim shall bear the burden of proof,” the patentee should bear the burden of proof for the design feature it claimed. In addition, the procedure of patent granting confirmation aimed at examining the patentability of a design. Therefore, the relevant records in the examination documents are of great reference significance for determining a design feature. Under ideal conditions, for the confirmation of a design patent granting, the patentability of the design should be determined on the basis of retrieval of all existing designs; however, for such reasons as restrictions of search databases and limitations of retrieval capabilities of the claimant for announcement of invalidation, the design feature determined in the relevant examination documents under the procedure of patent granting confirmation may be concluded not after the retrieval of all existing designs is exhausted. Therefore, regardless of a design feature proved by the patentee or a design feature as determined by records of the relevant examination documents in the granting confirmation, if a third party raises an objection, the third party may be permitted to provide counterevidence to overturn such design feature. The people's court should, on the basis of soliciting cross-examination opinions from all parties, fully examine evidence and legally determine the design feature of a patented design. 对于设计特征的认定,一般来说,专利权人可能将设计特征记载在简要说明中,也可能会在专利授权确权或者侵权程序中对设计特征作出相应陈述。根据“谁主张谁举证”的证据规则,专利权人应当对其所主张的设计特征进行举证。另外,授权确权程序的目的在于对外观设计是否具有专利性进行审查,因此,该过程中有关审查文档的相关记载对确定设计特征有着重要的参考意义。理想状态下,对外观设计专利的授权确权,应当是在对整个现有设计检索后的基础上确定对比设计来评判其专利性,但是,由于检索数据库的限制、无效宣告请求人检索能力的局限等原因,授权确权程序中有关审查文档所确定的设计特征可能不是在穷尽整个现有设计的检索基础上得出的,因此,无论是专利权人举证证明的设计特征,还是通过授权确权有关审查文档记载确定的设计特征,如果第三人提出异议,都应当允许其提供反证予以推翻。人民法院在听取各方当事人质证意见的基础上,对证据进行充分审查,依法确定授权外观设计的设计特征。
In this case, the patentee Grohe Company claimed that the track-shaped drainage surface was a design feature of the patented design involved and Gllon Company did not recognize such claim. To this issue, the effective judgment of Supreme People's Court held that: First, there was no brief description on the design features of the patented design involved; in the 12 documents of the design patent of the shower nozzle product submitted by Grohe Company in the trial of second instance, the publication date recorded in seven of such documents was prior to the application date of the patented design involved and the design in the attached pictures did not adopt the track-shaped drainage surface. In the procedure of examining a request for announcement of invalidation of the patented design involved, the patent reexamination board issued the No. 17086 Decision. According to the aforesaid Decision, upon comparison between the patented design involved and evidence (1) of the nearest comparative design, it was found that “there were great differences between the patented design involved and the design published prior to the patent in the shape of the transitional area between the nozzle and the surface, the design of the drainage area on the front side of the nozzle, and the proportion between the width of the nozzle and the diameter of the handle, and the aforesaid differences were the design content an ordinary consumer could easily notice.” In other words, it was determined in the Decision that the design of the drainage surface on the nozzle was one design feature of the patented design involved. Second, although Gllon Company did not recognize the track-shaped drainage surface as a design feature of the patented design involved, it did not submit the corresponding evidence in the trials of first instance and second instance to prove that the track-shaped drainage surface was an existing design. In the phase of retrial examination, Gllon Company submitted the view of the design patent of a shower nozzle (No. 200630113512.5) to prove that the track-shaped drainage surface has been publicized by the existing design. Upon examination, it was found that the publication date of the design patent was prior to the application date of the patented design involved and such design patent was an existing design for the patented design involved; however, it was a rectangle other than an arc pattern at both ends of the drainage surface as shown in the general view and the reference diagram of usage state and the drainage surface was not in the shape of a track. Therefore, the Supreme People's Court did not uphold Gllon Company's retrial application grounds that the track-shaped drainage surface was not a design feature of the patented design involved. 本案中,专利权人高仪公司主张跑道状的出水面为涉案授权外观设计的设计特征,健龙公司对此不予认可。对此,法院生效裁判认为,首先,涉案授权外观设计没有简要说明记载其设计特征,高仪公司在二审诉讼中提交了12份淋浴喷头产品的外观设计专利文件,其中7份记载的公告日早于涉案专利的申请日,其所附图片表示的外观设计均未采用跑道状的出水面。在针对涉案授权外观设计的无效宣告请求审查程序中,专利复审委员会作出第17086号决定,认定涉案授权外观设计与最接近的对比设计证据1相比:“从整体形状上看,与在先公开的设计相比,本专利喷头及其各面过渡的形状、喷头正面出水区域的设计以及喷头宽度与手柄直径的比例具有较大差别,上述差别均是一般消费者容易关注的设计内容”,即该决定认定喷头出水面形状的设计为涉案授权外观设计的设计特征之一。其次,健龙公司虽然不认可跑道状的出水面为涉案授权外观设计的设计特征,但是在本案一、二审诉讼中其均未提交相应证据证明跑道状的出水面为现有设计。本案再审审查阶段,健龙公司提交200630113512.5号淋浴喷头外观设计专利视图拟证明跑道状的出水面已被现有设计所公开,经审查,该外观设计专利公告日早于涉案授权外观设计申请日,可以作为涉案授权外观设计的现有设计,但是其主视图和使用状态参考图所显示的出水面两端呈矩形而非呈圆弧形,其出水面并非跑道状。因此,对于健龙公司关于跑道状出水面不是涉案授权外观设计的设计特征的再审申请理由,本院不予支持。
2. Parts that were easily and directly viewed in the normal use of the product carrying the patented design involved 二、关于涉案授权外观设计产品正常使用时容易被直接观察到的部位
The parts that could be easily and directly viewed in the normal use of the product carrying the patented design involved should be identified from the perspective of ordinary consumers, according to the product purpose, and by taking into full account of various usage status of such product. In this case, first, the patented design involved was the design of a shower nozzle product, which consisted of a nozzle and a handle and there was little difference in the proportions of the nozzle and the handle in the product structure. The shower nozzle product may be handle-held or hung on a wall. In the normal use, for ordinary consumers, the nozzle, the handle, and the junction between the nozzle and the handle were the parts that could easily and directly viewed. Second, evidence (2) for the design applied earlier as determined in No. 17086 Decision and the patented design involved adopted the same track-shaped drainage surface; however, in the patented design involved, “the nozzle and the handle are integrated into one body. There is cambered surface from the nozzle to the junction between them and the nozzle bents forward, which is greatly different from the design applied earlier. The aforesaid difference is the design content an ordinary consumer can easily notice.” Therefore, it was determined that they were designs that were neither identical nor similar. It could be seen that the parts of a shower nozzle product that could be easily and directly viewed were not limited to the drainage surface of the nozzle. When drawing an integrative conclusion on the overall visual effect of the design of a shower nozzle product, the nozzle, the handle, and the junction between them should be considered as parts that could be easily and directly viewed. 认定授权外观设计产品正常使用时容易被直接观察到的部位,应当以一般消费者的视角,根据产品用途,综合考虑产品的各种使用状态得出。本案中,首先,涉案授权外观设计是淋浴喷头产品外观设计,淋浴喷头产品由喷头、手柄构成,二者在整个产品结构中所占空间比例相差不大。淋浴喷头产品可以手持,也可以挂于墙上使用,在其正常使用状态下,对于一般消费者而言,喷头、手柄及其连接处均是容易被直接观察到的部位。其次,第17086号决定认定在先申请的设计证据2与涉案授权外观设计采用了同样的跑道状出水面,但是基于涉案授权外观设计的“喷头与手柄成一体,喷头及其与手柄连接的各面均为弧面且喷头前倾,此与在先申请的设计相比具有较大的差别,上述差别均是一般消费者容易关注的设计内容”,认定二者属于不相同且不相近似的外观设计。可见,淋浴喷头产品容易被直接观察到的部位并不仅限于其喷头头部出水面,在对淋浴喷头产品外观设计的整体视觉效果进行综合判断时,其喷头、手柄及其连接处均应作为容易被直接观察到的部位予以考虑。
3. Whether the button on the handle of the product carrying the patented design involved was a functional design feature 三、关于涉案授权外观设计手柄上的推钮是否为功能性设计特征
The functional design features of a design refer to features that are uniquely determined by the specific functions to be realized by a product without considering aesthetic factors for ordinary consumers of design products. Under normal circumstances, when a designer designs a product, he would consider both functional factors and aesthetic factors. On the premise of realizing the product functions, he would improve the design by observing the humanity rules. In other words, a product must first realize its functions and second it must be visually beautiful. For a certain feature of a design, the design is both functional and decorative in most situations. The designer would select one design he deems having the aesthetic perfection from various designs that could realize the specific functions. The design that is uniquely determined by the specific functions exists only under few special circumstances. Therefore, there are two types of functional design features of a design: unique design for realizing the specific functions; and one of various designs for realizing the specific functions, which is only determined by the specific functions to be realized and is irrelevant to aesthetic factors. The determination of functional design features does not lie in whether the design was selective due to restrictions of functions or technical conditions, but lies in whether the design is only determined by the specific functions without considering whether the design is aesthetic for ordinary consumers of design products. In general, functional design features have no significant impact on the overall visual effect of a design; for the impact of the design feature that is both functional and decorative on the overall visual effect, it is necessary to consider the degree of decorativeness. The more decorative the design feature is, the greater the impact on the overall visual effect is and vice versa. 外观设计的功能性设计特征是指那些在外观设计产品的一般消费者看来,由产品所要实现的特定功能唯一决定而不考虑美学因素的特征。通常情况下,设计人在进行产品外观设计时,会同时考虑功能因素和美学因素。在实现产品功能的前提下,遵循人文规律和法则对产品外观进行改进,即产品必须首先实现其功能,其次还要在视觉上具有美感。具体到一项外观设计的某一特征,大多数情况下均兼具功能性和装饰性,设计者会在能够实现特定功能的多种设计中选择一种其认为最具美感的设计,而仅由特定功能唯一决定的设计只有在少数特殊情况下存在。因此,外观设计的功能性设计特征包括两种:一是实现特定功能的唯一设计;二是实现特定功能的多种设计之一,但是该设计仅由所要实现的特定功能决定而与美学因素的考虑无关。对功能性设计特征的认定,不在于该设计是否因功能或技术条件的限制而不具有可选择性,而在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。一般而言,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;而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相对较大,反之则相对较小。
In this case, one difference between the patented design involved and the design of the alleged infringing product was that there was no track-shaped button on the handle of the latter. The button served as a switch for controlling the flow of water. Whether to set such button depended on whether it was necessary to realize the function of a switch for controlling the flow of water on a shower nozzle product. Nevertheless, as long as a button was set on the handle of a shower nozzle product, there may be several shape designs of the button. When an ordinary consumer saw the button on the handle of a shower nozzle product, he would naturally pay attention to its decoration and judge whether the design of the button was pleasing to the eye rather than just consider whether the button could realize the function of a switch for controlling the flow of water. The designer of the patented design involved designed a track-shaped button on the handle for the purpose of matching it up with the track-shaped drainage surface and increasing the overall aesthetic feeling of the product. Therefore, the judgment of second instance was erroneous in the application of law in determining that the button in the patented design involved was a functional design feature and the Supreme People's Court should correct this judgment. 本案中,涉案授权外观设计与被诉侵权产品外观设计的区别之一在于后者缺乏前者在手柄位置上具有的一类跑道状推钮设计。推钮的功能是控制水流开关,是否设置推钮这一部件是由是否需要在淋浴喷头产品上实现控制水流开关的功能所决定的,但是,只要在淋浴喷头手柄位置设置推钮,该推钮的形状就可以有多种设计。当一般消费者看到淋浴喷头手柄上的推钮时,自然会关注其装饰性,考虑该推钮设计是否美观,而不是仅仅考虑该推钮是否能实现控制水流开关的功能。涉案授权外观设计的设计者选择将手柄位置的推钮设计为类跑道状,其目的也在于与其跑道状的出水面相协调,增加产品整体上的美感。因此,二审判决认定涉案授权外观设计中的推钮为功能性设计特征,适用法律错误,本院予以纠正。
4. Whether the design of the alleged infringing product and the patented design involved were identical or similar 四、关于被诉侵权产品外观设计与涉案授权外观设计是否构成相同或者近似
In accordance with the provisions of Article 11 of the Interpretation on Patent Infringement Dispute Cases, “when determining whether designs are identical or similar, the people's court shall consider the design features of the patented design and the alleged infringing design and draw an integrative conclusion based on the overall visual effect of the design; and the people's court shall not consider design features which depend on technical functions.” The parts of a product which could be easily and directly viewed in the normal use of the product as opposed to other parts, and design features of a patented design which were distinctive from those of the existing designs as opposed to other design features of the patented design usually have more influences on the overall visual effect of the design. 《侵犯专利权纠纷案件解释》十一条规定,认定外观设计是否相同或者近似时,应当根据授权外观设计、被诉侵权设计的设计特征,以外观设计的整体视觉效果进行综合判断;对于主要由技术功能决定的设计特征,应当不予考虑。产品正常使用时容易被直接观察到的部位相对于其他部位、授权外观设计区别于现有设计的设计特征相对于授权外观设计的其他设计特征,通常对外观设计的整体视觉效果更具有影响。
In this case, after comparing the design of the alleged infringing product with the patented design involved, it was found that the layout of drainage holes of the former was located in the track-shaped front area of the nozzle. Although the quantity of drainage holes and their locations at both ends of the drainage surface were slightly different from those of the patented design involved, as a whole, the alleged infringing product adopted the design of a track-shaped drainage surface which was highly similar to the patented design involved. The court of first instance summarized eight aspects of distinctive design features of the design of the alleged infringing product and the patented design involved, to which both parties raised no objection. For such distinctive design features, first, as mentioned earlier, the No. 17086 Decision affirmed that the patented design involved had three design features: (1) the shape of the transitional area for the nozzle and other surfaces; (2) the shape of the drainage surface of the nozzle; and (3) the proportion between the width of the nozzle and the diameter of the handle. Besides the design feature of the shape of the drainage surface of the nozzle, the shape of the transitional area for the nozzle and other surfaces, the proportion between the width of the nozzle and the diameter of the handle, and other design features also brought about obvious impacts on the overall visual effect of such products. Although the design of the alleged infringing product adopted a track-shaped drainage surface which was highly similar to the patented design involved, with respect to the design feature in the shape of the transitional area for the nozzle and other surfaces, there was an arc-shaped transitional area for the nozzle, the handle, and the junction surface on the product carrying the patented design involved, while there was a tilting transitional area for the nozzle, the handle, and the junction surface on the alleged infringing product. The aforesaid design features made the design of the alleged infringing product and the patented design involved obviously different. In addition, with respect to distinctive design features of the design of the alleged infringing product and the patented design involved beyond non-design features, as long as they brought about obvious differences between the design of the alleged infringing product and the patented design involved in the overall visual effect, they may be taken into consideration. Second, the nozzle, handle, and junction between them of a shower nozzle product were the parts that could be easily and directly viewed in the normal use. When an integrative conclusion was drawn by taking the overall visual effect into full consideration, examination priority should be given to the design of the aforesaid parts. In particular, there was a track-shaped button on the handle of the product carrying the patented design involved, while the alleged infringing product did not have such design. This distinctive design feature of having or not having the button affected the overall visual effect of such products; and there was a small angle in the junction between the nozzle and the handle of the product carrying the patented design involved, while there was a large angle in the junction between the nozzle and the handle of the alleged infringing product, making them obviously different in the left view. Since the design of the alleged infringing product did not include all design features of the patented design involved and there were distinctive design features between the design of the alleged infringing product and the patented design involved in terms of the handle and the junction between the nozzle and the handle, and there were obvious differences in the overall visual effects of such designs. Therefore, they were not identical or similar and the design of the alleged infringing product did not fall into the protection scope of the patented design involved. The judgment of second instance only gave priority to the design feature of a track-shaped drainage surface of the patented design involved and did not consider other design features of the patented design involved as well as the distinctive design features of the design of the alleged infringing product and the patented design involved in the parts of a shower nozzle product that could be easily and directly viewed in the normal use. The judgment of second instance was erroneous in the application of law in determining that the design of the alleged infringing product was similar to the patented design involved and the Supreme People's Court should correct the judgment of second instance. 本案中,被诉侵权产品外观设计与涉案授权外观设计相比,其出水孔分布在喷头正面跑道状的区域内,虽然出水孔的数量及其在出水面两端的分布与涉案授权外观设计存在些许差别,但是总体上,被诉侵权产品采用了与涉案授权外观设计高度近似的跑道状出水面设计。关于两者的区别设计特征,一审法院归纳了八个方面,对此双方当事人均无异议。对于这些区别设计特征,首先,如前所述,第17086号决定认定涉案外观设计专利的设计特征有三点:一是喷头及其各面过渡的形状,二是喷头出水面形状,三是喷头宽度与手柄直径的比例。除喷头出水面形状这一设计特征之外,喷头及其各面过渡的形状、喷头宽度与手柄直径的比例等设计特征也对产品整体视觉效果产生显著影响。虽然被诉侵权产品外观设计采用了与涉案授权外观设计高度近似的跑道状出水面,但是,在喷头及其各面过渡的形状这一设计特征上,涉案授权外观设计的喷头、手柄及其连接各面均呈圆弧过渡,而被诉侵权产品外观设计的喷头、手柄及其连接各面均为斜面过渡,从而使得二者在整体设计风格上呈现明显差异。另外,对于非设计特征之外的被诉侵权产品外观设计与涉案授权外观设计相比的区别设计特征,只要其足以使两者在整体视觉效果上产生明显差异,也应予以考虑。其次,淋浴喷头产品的喷头、手柄及其连接处均为其正常使用时容易被直接观察到的部位,在对整体视觉效果进行综合判断时,在上述部位上的设计均应予以重点考查。具体而言,涉案授权外观设计的手柄上设置有一类跑道状推钮,而被诉侵权产品无此设计,因该推钮并非功能性设计特征,推钮的有无这一区别设计特征会对产品的整体视觉效果产生影响;涉案授权外观设计的喷头与手柄连接产生的斜角角度较小,而被诉侵权产品的喷头与手柄连接产生的斜角角度较大,从而使得两者在左视图上呈现明显差异。正是由于被诉侵权产品外观设计未包含涉案授权外观设计的全部设计特征,以及被诉侵权产品外观设计与涉案授权外观设计在手柄、喷头与手柄连接处的设计等区别设计特征,使得两者在整体视觉效果上呈现明显差异,两者既不相同也不近似,被诉侵权产品外观设计未落入涉案外观设计专利权的保护范围。二审判决仅重点考虑了涉案授权外观设计跑道状出水面的设计特征,而对于涉案授权外观设计的其他设计特征,以及淋浴喷头产品正常使用时其他容易被直接观察到的部位上被诉侵权产品外观设计与涉案授权外观设计专利的区别设计特征未予考虑,认定两者构成近似,适用法律错误,本院予以纠正。
In conclusion, the design of the alleged infringing product produced, offered for sale, and sold by Gllon Company and the patented design involved of Grohe Company were neither identical nor similar and the former did not fall into the protection scope of the latter. The production, offering for sale, and sale of the alleged infringing product by Gllon Company did not constitute infringement upon the patented design involved of Grohe Company. The judgment of second instance was erroneous in the application of law and the Supreme People's Court should correct it according to the law. 综上,健龙公司生产、许诺销售、销售的被诉侵权产品外观设计与高仪公司所有的涉案授权外观设计既不相同也不近似,未落入涉案外观设计专利权保护范围,健龙公司生产、许诺销售、销售被诉侵权产品的行为不构成对高仪公司涉案专利权的侵害。二审判决适用法律错误,本院依法应予纠正。
(Judges of the effective judgment: Zhou Xiang, Wu Rong, and Song Shuhua) (生效裁判审判人员:周翔、吴蓉、宋淑华)
fnl_8917470 
     
     
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