Determining Design Patent Similarity Based on the Ordinary Observer Test

Abstract

<span style="mso-fareast-font-family:DFKai-SB; letter-spacing:-.1pt" lang="EN-GB">An era of industrial competitiveness is being unveiled as the number of patent applications continues to increase in Taiwan, and now design patent rights have become a major competitive domain for mature products. The focus of this study is to analyse through questionnaires, the public perception on whether products with similar appearance or external design would be deemed infringing. The study chose five benchmark cases of design patent infringement as study samples. A total of 126 questionnaires were distributed, and 117 of them were returned and valid. The results indicated that when the similarity level rated by test subjects is greater than 79 per cent, the ruling is likely to favour infringement whereas if the level of similarity is rated lower than 44 per cent, infringement will not be established. The results are fully consistent with judicial decisions. This ordinary observer test panel on the similarity level can be used to predict the result of a design patent litigation.

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