Domestic design system

Regarding the difficulty of creating designs: Detailed explanation of registration requirements

Regarding the difficulty in creating designs

The purpose of the design registration system is to encourage the creation of designs and contribute to the development of industry by protecting and utilizing designs. The main requirements for protection (design registration) are "industrial applicability," "novelty," and "difficulty in creation." While making a design with novelty a requirement for registration, granting rights to designs that can be easily created by a person skilled in the art may hinder industrial development, so it is recommended not to grant rights to such designs. , and are coordinating its protection.

In this article, we will explain the ``difficulty in creating a design,'' which refers to whether a design can be easily created by a person skilled in the art, based on examination standards.

1. What is the difficulty of creating a design?

According to Article 3, Paragraph 2 of the Design Act, designs eligible for design registration include those that can be easily created by a person with ordinary knowledge in the field to which the design belongs (hereinafter referred to as "a person skilled in the art"). will be excluded.

In other words, designs based on shapes, patterns, colors, or combinations of these that can be easily thought of by a person skilled in the art cannot be registered. This provision is called "creative impossibility."

2. Who determines whether it is difficult to create?

The person who determines whether it is difficult to create is a "person skilled in the art."

A person skilled in the art refers to a person in the industry that manufactures or sells products to which the design applies, and who has ordinary knowledge regarding the design in that industry at the time of filing the application for design registration.

However, in the actual examination of design registration, examiners at the Japan Patent Office examine the matter from the perspective of a person skilled in the art and make decisions.

3. Basic concept regarding determination of ease of creation

Article 3, Paragraph 2 of the Design Act stipulates that a person skilled in the art can easily create a design based on shapes, patterns, colors, combinations of these (shapes, etc.) or images that have become publicly known (*) before filing for design registration. This stipulates that if a design is able to do so, the design cannot be registered.

The examiner shall determine whether the applied design is based on the constituent elements and specific aspects that became publicly known before the application, and whether there are common techniques or minor modifications in the field (see 5. Common Techniques and Minor Modifications). If the design falls under the category of a design that is simply created by

If the applied design is a partial design for an article, etc., when determining whether it is difficult to create, consider the shape, use, and function of the "part for which design registration is sought," and Judgment shall also be made taking into account whether or not it would be easy for a person skilled in the art to define the position, size, and range of the "part that is intended to be received" within the overall shape, etc. of the article, etc. will be done.

However, if the idea of ​​the design is novel or original from the perspective of a person skilled in the art, such points will be taken into consideration when making a decision. When the examiner takes into consideration the statements in the statement of characteristics and written opinions when making his/her decision, only the scope derived from the statements in the original application form and drawings, etc. will be considered.

*The term "became publicly known" means that it is "publicly known in Japan or abroad, is described in a distributed publication, or is made available to the public through telecommunications lines."

4. Materials that serve as the basis for determining the difficulty of creation

The materials on which the examiner bases his judgment on the difficulty of creation are materials that are publicly known in Japan or abroad, described in distributed publications, or made available to the public through telecommunications lines; This includes patterns, colors, images, etc.These materials are not limited to fields that are the same or similar to the applied design.

Due to the revision of the Design Law in April 2, the basis for the above judgment has changed from "shapes, patterns, or colors, or combinations thereof, that are publicly known in Japan or abroad" to "shapes, patterns, or colors, or combinations thereof, that are publicly known in Japan or abroad."published, published in a distributed publication, or made available to the public through telecommunications lines.Shape, pattern or color or combination thereofor image” has been expanded.

By the way,``Described in a distributed publication'' and ``made available to the public through telecommunications lines'' do not actually need to be known to an unspecified or large number of people.According to the Intellectual Property High Court Judgment (May 30, 5: 30 (Gyoke) No. 30), ``In order to be ``publicly known,'' it is necessary to have a design registered in Japan or abroad before applying for design registration. "The fact that the design was made known to an unspecified number of persons or to a large number of persons should be understood to be necessary," but the interpretation of whether the design was made publicly known simply by publishing it in a publication or on the Internet was then disputed. As a result, the law was revised to clarify the level of ease of creation.

5. Common methods and minor modifications

In determining whether it is difficult to create, the important factors are whether the work falls under "common methods" and "minor modification."

If the applied design is created based on components or specific aspects that became publicly known before the application, the examiner will consider whether the design was created using a common method. To do. Examples of common techniques include:
*The chart below quotes the Design Examination Guidelines (revised on March 3, 3) published by the Japan Patent Office.

(a) Replacement

(b) Miscellaneous

(c) mere deletion of some configuration;

(d) Change of arrangement

(e) Change in composition ratio

(f) increase or decrease in the number of consecutive units;

(g) Utilization and diversion of configurations beyond the scope of goods, etc.

In the filed design, if the constituent elements or specific aspects that have become publicly known are not expressed as they are by a common method, the examiner will consider whether they are expressed with modifications, and Determine whether the modification is nothing more than a "substantial modification."

Examples of minor modifications include:

  1. Subtle changes to line thickness and angle
  2. A slightly different combination of colors
  3. Minor scaling of patterns
  4. Slight variations in some elements

6. Application of the provisions of novelty and ease of creation

When examining the novelty and ease of creation of an applied design, the examiner first determines whether it satisfies the requirements for novelty. Only when no grounds for refusal regarding novelty are found will a determination of difficulty in creation be made.

*For explanation regarding novelty, please refer to here. for more information.

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