In the process of invalidation of design patents, the evidence retrieved by the invalidation applicant usually is not enough to fully disclose the design features of the patent involved, so there are more or less some distinguishing design features. In order to assert the invalidity of the patent involved, these distinguishing design features are usually classified as customary designs or nuances, depending on the circumstances. Nuance, on the other hand, is usually supported when it has little impact on the overall visual effect. However, at present, the identification of the customary design is relatively strict.
In the Patent Examination Guidelines, it is stipulated that the corresponding design which is well known to the general consumers and can be thought of as long as the name of the product is mentioned is called the customary design. For example, when it comes to packaging boxes, we can think of rectangular and cube shapes. According to this definition, there is a great difference between the conventionality of customary design and the conventionality of common knowledge in the invention of new type, and the two cannot be cross-referenced in the aspect of proof.
Common knowledge is compared with customary design as follows to help understand their specific properties :
- Different types of evidence. If common knowledge is to be proved, its evidence type is basically limited to these types, such as: textbooks, technical manuals and technical dictionaries. However, there is no fixed form of evidence for the proof of the customary design, and multiple existing designs including the customary design can be directly adopted. The more existing designs, the higher the proof power.
- Different periods of proof. Common knowledge evidence enjoys a grace period of proof, allowing the applicant of invalidation to submit common knowledge evidence in the technical fields such as technical dictionary, technical manual and textbook before the conclusion of oral trial debate. However, there is no clear provision for a grace period for proof of customary designs.Therefore, the customary design proof applies to the period of proof of general evidence, that is, to submit evidence within one month after the submission of the request for invalidation.
- Different scope of review.The collegiate group may, in accordance with its authority, determine common knowledge. The Patent Examination Guidelines stipulated:The Patent Re-examination Board may, according to its functions and powers, determine whether the technical means are common knowledge, and may introduce evidence of common knowledge in the technical fields such as technical dictionaries, technical manuals and textbooks. Thus, the collegiate group can take the initiative to introduce evidence to show that a certain technical means is common knowledge. However, customary design is not so clearly defined.Usually in practice, the identification of customary design is mostly borne by the applicant of invalidation, and the collegiate group is to review in the middle. In most cases, the identification of customary design needs to combine the differences in the overall visual effect to explain whether the design conforms to the relevant provisions of article 23 of the Patent Law.
Therefore, at present, the relevant provisions of the customary design are not comprehensive, and the identification of the customary design gives agents a large space for operation, which will become the direction for agents to display their talents in the invalidation stage. For agents, it is not to be confused with common knowledge in the understanding of customary design. The two have their own characteristics and standards, so they should be treated separately.
