No 3 of(2010)Administrative Litigation, Retrial (Chinese version only)

the People's Republic of China Supreme People's Court
administrative judgment
(2010) No. 3

　　Applicant for retrial (plaintiff of first instance and appellant of second instance): Honda Technology Research Industry Co., Ltd., No. 1, Nanqingshan 2-chome, Minato-ku, Tokyo, Japan.
legal representative: Kondo Hiroichi, chairman of the board.
: Xin Zhesheng, male, patent agent of the Patent and Trademark Office of the China Council for the Promotion of International Trade, lives on the 10th floor of Yuanyang Building, 158 Fuxingmennei Street, Beijing, the People's Republic of China.
: Chen Jian, male, patent agent of the Patent and Trademark Office of the China Council for the Promotion of International Trade, lives on the 10th floor of Yuanyang Building, 158 Fuxingmennei Street, Beijing, the People's Republic of China.
respondent (defendant of first instance and appellee of second instance): the People's Republic of China Patent Reexamination Board of State Intellectual Property Office, domicile the People's Republic of China Floor 10-12, Yinguo Building, No. 9 Beisihuan West Road, Haidian District, Beijing.
Legal Representative: Zhang Maoyu, Deputy Director.
: Qian Yijun, female, examiner of the Patent Reexamination Board of the State Intellectual Property Office of the People's Republic of China, lives on the 10-12th floor of Yingu Building, No. 9 Beisihuan West Road, Haidian District, Beijing, the People's Republic of China.
: Yu Xinlei, female, examiner of the Patent Reexamination Board of the State Intellectual Property Office of the People's Republic of China, lives on the 10-12 floor of Yingu Building, No. 9 Beisihuan West Road, Haidian District, Beijing, the People's Republic of China.
: Shijiazhuang Shuanghuan Automobile Co., Ltd., the People's Republic of China No. 8, Zhengding Street, Shijiazhuang City, Hebei Province.
Legal Representative: Zhao Zhigang, Chairman of the Board.
Authorized Agent: Liu Yingkun, lawyer of Hebei and Rongxing Law Firm.
Authorized Agent: Wang Yuanxiang, male, researcher of Shijiazhuang Intellectual Property Service Center, lives in the People's Republic of China 302, Unit 3, Building 5, Hongqi Living Community, qiaoxi district, Shijiazhuang City, Hebei Province.
: the bankruptcy liquidation group of Hebei Xinkai Automobile Manufacturing Co., Ltd., the People's Republic of China South Street, Gaobeidian City, Hebei Province.
Legal Representative: Li Zhenjun, head of the liquidation group.
Authorized Agent: Li Hu, male, deputy head of the bankruptcy liquidation group of Hebei Xinkai Automobile Manufacturing Co., Ltd., lives in Room 502, Unit 2, No. 23 Tuanjie East Road, Gaobeidian City, Hebei Province, the People's Republic of China.

retrial applicant, Honda Technology Research Industry Co., Ltd. (referred to as Honda Co., Ltd.), the People's Republic of China with the respondent, the Patent Reexamination Board of the State Intellectual Property Office (referred to as the Patent Reexamination Board), the third person in the original trial, Shijiazhuang Shuanghuan Automobile Co., Ltd. (referred to as Shuanghuan), and the third person in the original trial, Hebei Xinkai Automobile Manufacturing Co., Ltd. Bankruptcy Liquidation Group (referred to as Xinkai Company), if you refuse to accept the administrative judgment No. 274 of Gao Xing Zhong Zi of Beijing Higher People's Court (2007), apply to this court for retrial. On February 4, 2010, the court made (2008) administrative ruling no 43-1 of xing Jian zi to arraignment the case. The court formed a collegial panel according to law and held a public hearing on July 15, 2010. The entrusted agents of Honda Co., Ltd. Xin Zhesheng and Chen Jian, the entrusted agents of the Patent Reexamination Board Qian Yijun and Yu Xinlei, the entrusted agents of Shuanghuan Company Liu Yingkun and Wang Yuanxiang, and the entrusted agent of Xinkai Company Li Hu attended the lawsuit. The case is now closed.
The court of second instance of the former 1. found that Honda Co., Ltd. was the patentee of No. 01319523.9 "automobile" design patent right (hereinafter referred to as this patent). Shuanghuan Company filed a request for invalidation of this patent to the Patent Reexamination Board on December 24, 2003 and Xinkai Company on December 10, 2004. The Patent Reexamination Board examined the above two invalidation requests together and conducted an oral hearing on March 28, 2005. On March 7, 2006, the Patent Reexamination Board made decision No. 8105 (hereinafter referred to as decision No. 8105) to invalidate the patent. The decision holds that: according to the statement of Shuanghuan Company in the request, the 1. has made a certain explanation of the reasons for its invalidity. Although there is no detailed discussion in the request, there are some improprieties, it is not enough to determine that it constitutes an inadmissibility, and Honda Co., Ltd. has made a sufficient statement of opinions on all the evidence, which has not led to its inability to state its opinions. 2. comparing this patent with the Japanese Design Bulletin JP1004783 (abbreviated as Evidence 1), it can be seen that the shapes of the various components of the two cars and the proportional relationship between them are basically the same, and the overall visual shape and design style are basically the same. Although there are several detailed differences in appearance between this patent and evidence 1 products, for example, the headlight of this patent is an irregular quadrangle that is approximately triangular, while the headlight of evidence 1 is approximately trapezoidal; the front bumper of this patent is below The two sides are equipped with auxiliary lights, and no corresponding configuration is seen in evidence 1; the protective plates of this patent and evidence 1 are both inverted U-shaped, but the protective plates of this patent are equipped with horizontal spacers, there are small teeth at the bottom, and there are several spaces in the evidence 1 guard plate; the middle window glass of this patent is an irregular trapezoid formed by a right angle on one side and a broken line on the other side, and the middle window glass of evidence 1 is a right angle trapezoid; The rear combination lamp of this patent extends from the vicinity of the roof to the raised part of the rear bumper, and the rear combination lamp of evidence 1 is arranged on the upper part of the car body; from the rear line of this patent and evidence 1 car, the lines of this patent are slightly sleek; the shapes of the rear bumpers of the two are also slightly different. However, the above-mentioned differences in the appearance of the products of this patent and Evidence 1 are all partial differences. According to the principles of overall observation and comprehensive judgment, the above differences are relatively subtle differences for the overall visual shape and style of the car. It is not enough to make ordinary consumers produce obviously different visual effects and identify the two as products with different styles, the similarities in the main parts of the two make it easy for ordinary consumers to confuse the two. As for Honda Co., Ltd.'s emphasis on "this patent has a high body and a high center of gravity, which is a slender shape, while evidence 1 has a low center of gravity and belongs to a wider body shape", from the overall observation of the two, there is no obvious difference in the visual effects described by Honda Co., Ltd., so it does not support Honda Co., Ltd. To sum up, this patent and evidence 1 are similar designs and do not conform to the provisions of Article 23 of the Patent Law.
Honda Co., Ltd. refused to accept the decision No. 8105 made by the Patent Reexamination Board and filed a lawsuit with the Beijing No. 1 Intermediate people's Court.
Beijing No. 1 Intermediate People's Court held that the Patent Reexamination Board's acceptance of the invalidation request complies with laws and regulations. This patent and the prior design are both the appearance design of the entire automobile. Generally, consumers observe the overall car during the purchase and use process. It is a common situation in real life. Therefore, the comparison between this patent and the prior design should adopt The way of overall observation. Although there is a certain difference between the appearance design of this patent and Evidence 1, for the overall appearance of the car, it is easier for ordinary consumers to pay more attention to the overall design style of the car, the contour shape, and the proportional relationship between the components. The difference between the two is not enough to make the general consumers have obvious visual differences in the overall design of the two. Therefore, this patent and evidence 1 belong to similar design. Decision No. 8105 made by the Patent Reexamination Board found that the facts were clear, the applicable laws were accurate, and the procedures were legal. Accordingly, it made (2006) Administrative Judgment No. 779 of the First Bank of China and upheld Decision No. 8105 made by the Patent Reexamination Board. The acceptance fee for the first instance case is 1000 yuan, which will be borne by Honda Co., Ltd.
Honda Co., Ltd. refused to accept the first-instance judgment and appealed to the Beijing Higher People's Court.
the second instance of the Beijing Higher People's Court held that in this case, the subject of judgment should be people who have a common sense understanding of products such as "automobiles", and they have a certain degree of difference in shape and pattern between design products. Resolution, but will not notice the small changes in the shape and pattern of the product. If the general consumer after the overall observation of the patent and evidence 1, the difference between the two does not have a significant impact on the overall visual effect of the product design, then this patent and evidence 1 constitute a similar design.
as a whole, the shape of the two exterior designs in the various components of the car, the relationship between length, width, and height, the overall shape of the body, and the design style are roughly the same. The overall outline of the car has the most significant impact on the visual perception of ordinary consumers. Honda Co., Ltd. cited similar cars of other brands with similar overall shapes to prove that the design space of this type of car is limited. In this regard, the court of second instance held that the similar overall appearance of similar cars cited by Honda Co., Ltd. was not the only shape limited by its function. Shuanghuan Company and Xinkai Company also provided counter evidence to prove that similar cars have different overall appearance. Therefore, Honda Co., Ltd. believes that the claim of limited design space lacks factual basis.
Compared with Evidence 1, the main differences in the design of this patent are: 1. The headlights of this patent are irregular quadrilateral, and the headlights of Evidence 1 are approximately trapezoidal; 2. The two sides under the front bumper of this patent are equipped with fog lamps, and there is no fog lamp in Evidence 1; 3. The front guard plate of this patent and Evidence 1 is inverted U-shaped, but the guard plate of this patent is equipped with horizontal spacers, there are small teeth at the bottom, and evidence 1 is provided with longitudinal spaces in the guard plate; 4. The rear combination lamp of this patent extends downward from the roof to the lower part of the window. Evidence 1 The rear combination lamp is basically equivalent to the height of the rear window. In addition, the two also have subtle differences in the grille, rear bumper, rear roof profile, etc.
The side view of the car body can reflect the overall shape of the car body. It is the most easily observed part of the general consumer during purchase and use, and should not be excluded from the overall observation range. As can be seen from the side view of the vehicle body, the overall shape of the vehicle, the height of the vehicle body, the shape of the door and the window of the present patent and the evidence 1 are similar. The side of the car body claimed by Honda Co., Ltd. is the usual design without factual basis. The bottom and top of the car are not easy to be observed by ordinary consumers, and the differences in these parts have no obvious impact on the overall visual perception.
the difference between this patent and evidence 1 is a local difference, the general consumer needs to pay special attention, repeated comparison to distinguish, such a difference on the overall visual effect does not have a significant impact. Therefore, when the overall design style, contour shape, and proportional relationship between the components are similar, the combination of subtle differences in several parts of the car will not produce obvious visual differences. Therefore, this patent and evidence 1 constitute a similar design, this patent should be declared invalid. To sum up, Honda Co., Ltd.'s appeal reasons lack factual and legal basis. The first instance judgment found that the facts were clear and the applicable law was correct. According to this judgment: reject the appeal and uphold the original judgment. 1. the acceptance fee for the second instance case is 1000 yuan each, which will be borne by Honda Co., Ltd.
Honda Co., Ltd. applied for a retrial, saying that 1. In this case, the subject of judging the same or similar appearance design should be the "sports multifunctional car", that is, SUV cars, consumers with common sense understanding, that is, buyers who are willing to buy SUV cars and users of SUV cars. However, the judgment of the second instance identified the judgment subject as those who have common sense understanding of automobile products, judgment subject identification error. 2. The judgment of the second instance regards the shape of the various components of the car, the length, width, and height ratio relationship between each other, the overall shape of the car body and the design style as the overall observation object, and the ratio relationship and the overall shape of the car body belong to the SUV type car The usual design has no significant impact on the overall visual effect of the appearance design; there are differences between this patent and Evidence 1 in headlights, fog lights, front guards, rear combination lights, grilles, rear bumpers, etc. Excluding the usual design parts, these differences have strong decorative effects and have a significant impact on the overall visual effect. This patent is not the same as the design disclosed in Evidence 1, nor is it similar. Request the court to revise the judgment: revoke the original 1. second instance judgment and decision no 8105, declare the patent right of this case valid, and the original 1. second instance case acceptance fee shall be borne by the patent reexamination board.
Patent Reexamination Board argued that 1. In this case, ordinary consumers should be people who have a common sense understanding of products such as "cars", and they have a certain degree of difference in the shape and pattern of car design products. The ability to distinguish, but still will not notice the small changes in the shape and pattern of the product. 2. Compared with the previous design, the overall shape of the car body, the shape of each component and the ratio between each other are roughly the same. The difference in the shape of the headlight, grille, front guard, and rear combination lamp Compared with the car as a whole, it is a subtle difference and will not have a significant visual impact on ordinary consumers.
Shuanghuan Company stated that 1. SUV type cars are the title of such cars by car professionals, which is not understood and known by ordinary consumers; the national standard classifies cars into passenger cars and commercial vehicles. There is nothing wrong with the judgment subject determined by the second instance judgment. 2. Judging that the appearance design is the same and similar, it should be observed as a whole, and the same design as a whole should not be regarded as the usual design, only local judgment should be made. Moreover, the differences between this patent and the prior design are similar, so this patent is similar to the prior design. 3. The notary must witness the facts to be notarized in person, but the power of attorney submitted by Honda Co., Ltd. is not a notary to witness in person, which does not conform to the law.
Xinkai Company said that the judgment of appearance design approximation should adopt the criteria of overall observation and comprehensive judgment, and should not separate each local feature for comparison. Generally, small differences are not considered, and ordinary consumers do not have the ability to judge small differences.
the retrial of the court found that the facts found in the original 1.'s second instance judgment were basically true.
, the court held that the power of attorney of Honda Co., Ltd. was certified by the Japanese notary public and certified by the the People's Republic of China embassy in the country, which was effective and did not violate the law.
makes an overall observation of the compared design and the previous design, and comprehensively judges whether the difference between the two has a significant impact on the visual effect of the product design. The basic method for judging whether the appearance design is the same or similar stipulated in the Patent Examination Guide. According to the provisions of the Patent Examination Guide, the characteristics of general consumers are that they have a common sense understanding of the design status of similar or similar products of the designed products, and the shape, pattern and color between the design products. The difference has a certain degree of resolution, but will not notice the small changes in the shape, pattern and color of the product. The so-called "common sense understanding" refers to the understanding of the appearance design status of related products and does not have the ability to design, but it is not limited to the basic and simple understanding; the so-called "whole" includes all the visual parts of the product Design features, not a specific part; the so-called "synthesis" refers to the synthesis of all factors that can affect the overall visual effect of the product design.
in this case, the "whole" of the car design of the type of dispute includes not only the basic outline of the car and the proportional relationship of each part, but also the front, side, and back of the car, which should be fully observed. In the comprehensive judgment, the influence of various parts on the overall visual effect of the car appearance design should be weighed according to the characteristics of the car in dispute. As far as the type of car in dispute in this case is concerned, because the outline of this type of car is relatively close, the common design feature has a limited impact on the visual effect of the general consumer of this type of car. On the contrary, changes in the design features of the front, side, and rear of the car will attract more attention from ordinary consumers of this type of car. In this case, the exterior design of the car shown in this patent is compared with the exterior design of the car shown in Evidence 1. There are differences in the headlights, fog lights, front guards, grilles, side windows, rear combination lights, rear bumpers, and roof contours. In particular, the car headlights of this patent adopt an irregular quadrilateral design that is approximately triangular, with an inverted U-shaped front guard with small teeth and a grille with a horizontal bar in the middle; the side rear windows of the car adopt Irregular quadrangle design, and the rear window glass and the rear combination lamp are separated by the window frame, which matches the smooth transition between the upper and lower parts of the car body; the rear of the car adopts a "narrow top and wide bottom" column lamp design that extends from near the roof to the raised part of the rear bumper. With the U-shaped rear bumper with teeth, it is more prominent and eye-catching., Has a strong visual impact. Obviously, these differences are obvious to the general consumer of the car in dispute in this case, enough to distinguish the overall visual effect of the car design shown in the picture of this patent from the car design shown in evidence 1. Therefore, the above difference has a significant impact on the overall visual effect of this patent and evidence 1 car design, and the two do not belong to similar designs.
in this case, although the decision of the Patent Reexamination Board and the judgment of the second instance of the original 1. found the difference between the two designs, they all took the difference as a "subtle difference" and removed the design features of this part from the "whole" of the automobile appearance design. In essence, they only focus on comparing the overall outline of the two designs, it is also believed that the overall outline of the car has the most significant impact on the visual perception of the general consumer of the car, rather than the type of car, so that it is wrongly determined that this patent is similar to the design of Evidence 1, and the patent right in this case is invalid.
To sum up, the original 1. judgment of the second instance found that the design of the car shown in this patent is similar to that of the car shown in evidence 1, thus maintaining the decision No. 8105 of the Patent Reexamination Board. The applicable law is wrong and should be corrected. In accordance with Article 54, Item (II), Item 2 of the the People's Republic of China Administrative Procedure Law and Article 76, Paragraph 1 and Article 78 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the the People's Republic of China Administrative Procedure Law, the judgment is as follows:
1. revoked the administrative judgment No. 274 of the Beijing Higher People's Court (2007) Gaoxing Zhongzi, and the administrative judgment No. 779 of the Beijing First Intermediate People's Court (2006) Yizhong Chuzi;
2. revoke the patent reexamination board no 8105 request for invalidation review decision.
The acceptance fee for the original case of first instance is RMB 1000, and the acceptance fee for the original case of second instance is RMB 1000, totaling RMB 2000, which shall be borne by the Patent Reexamination Board.
This judgment is final.

Presiding Judge Wang Yongchang
Acting Judge Li Jian
Acting Judge Luo Xia
November 26, 2010
Clerk Wang Xin