Grohe AG v. Zhejiang Jianlong Sanitary Ware Co., Ltd., A Dispute over Infringement of an Exterior Design Patent Guiding Case No. 85 (Discussed and Passed by the Adjudication Committee of the Supreme People s Court Released on March 6, 2017) CHINA GUIDING CASES PROJECT English Guiding Case (EGC85) August 16, 2017 Edition The citation of this translation of this Guiding Case is: 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 (Grohe AG v. Zhejiang Jianlong Sanitary Ware Co., Ltd., A Dispute over Infringement of an Exterior Design Patent), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC85), Aug. 16, 2017 Edition, http://cgc.law.stanford.edu/guiding-cases/guiding-case-85. The original, Chinese version of this case is available at 中国法院网 (WWW.CHINACOURT.ORG), http://www.chinacourt.org/article/detail/2017/03/id/2574940.shtml. See also 最高人民法院关于发布第 16 批指导性案例的通知 (The Supreme People s Court s Notice Concerning the Release of the 16 th Batch of Guiding Cases), issued on and effective as of Mar. 6, 2017, http://www.chinacourt.org/law/detail/2017/03/id/149260.shtml. This document was primarily prepared by Oma Lee, Sean Webb, Peter Witherington, and Dr. Mei Gechlik; it was finalized by Sean Webb, Dimitri Phillips, and Dr. Mei Gechlik. Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the headings, was done to make the piece more comprehensible to readers; all footnotes, unless otherwise noted, have been added by the China Guiding Cases Project. The following text is otherwise a direct translation of the original text released by the Supreme People s Court.
2 Keywords Civil Infringement of an Exterior Design Patent Design Features Functional Features Overall Visual Effect Main Points of the Adjudication 1. The design features of an exterior design for which rights have been granted manifest the innovative content that makes [said design] different from existing designs and also manifest the designer s innovative contributions to existing designs. If an allegedly infringing design does not include all of the design features that distinguish an exterior design for which rights have been granted from existing designs, it can be generally presumed that the allegedly infringing design and the exterior design for which rights have been granted are not similar. 2. With respect to the determination of design features, the patentee should prove the design features that he 1 asserts. A people s court shall, on the basis of cross-examination opinions heard from all the parties, fully review the evidence and confirm, in accordance with law, the design features of the exterior design for which rights have been granted. 3. The determination of functional design features hinges on whether the design, in the eyes of a general consumer of the product bearing the exterior design, is settled on solely [on the basis of] specific functions and there is no need to consider whether the design has aesthetic appeal. Functional design features do not have a notable impact on the overall visual effect of an exterior design. For [evaluating] the impact, on the overall visual effect, of design features that are both functional and decorative, [one] needs to consider how strong the decorative features are: the more decorative they are, the bigger impact they have on the overall visual effect, and vice versa. Related Legal Rule(s) Article 59, Paragraph 2 of the Patent Law of the People s Republic of China 2 1 The terms he and his as used herein are gender-neutral terms that may refer to she and her or it and its. 2 中华人民共和国专利法 (Patent Law of the People s Republic of China), passed and issued on Mar. 12, 1984, effective as of Apr. 1, 1985, amended three times, most recently on Dec. 27, 2008, effective as of Oct. 1, 2009, http://www.sipo.gov.cn/zcfg/flfg/zl/fl/201509/t20150902_1169595.html.
3 Basic Facts of the Case Grohe AG 3 (hereinafter referred to as Grohe Company ) is the right-holder of the exterior design patent Handheld Showerhead (No. A4284410X2). The exterior design patent is currently legal and effective. 4 In November 2012, Grohe Company brought suit against Zhejiang Jianlong Sanitary Ware Co., Ltd. 5 (hereinafter referred to as Jianlong Company ) on the grounds that the bathroom products in the Liya series 6 that [Jianlong Company] produced, sold, and promised to sell infringed upon its Handheld Showerhead exterior design patent. [Grohe Company] requested that the court order Jianlong Company to immediately cease the allegedly infringing acts, to destroy [its] stock of infringing product and the molds specifically used for the production of the infringing product, and to pay Grohe Company RMB 200,000 as compensation for economic losses. Comparison during the first-instance trial demonstrated that Jianlong Company s allegedly infringing product and Grohe Company s [product described in the] exterior design patent involved in the case are the same [in the following ways]: 7 both are products of the same type; both, as a whole, are composed of two parts, a spray head and a handle; the shape of the water outlet surface of the spray head of the allegedly infringing product is the same as that of [the product described in] the patent involved in the case in that the outlet holes of both [products] are radially distributed over an area whose ends are curved, middle is rectangular, and edges are shaped like circular arcs. The differences between these two products are: 1. The surfaces around the spray head of the allegedly infringing product are sloped and slant from the back [of the spray head] toward the water outlet [surface], whereas the 3 The name 高仪股份公司 is translated herein as Grohe AG in accordance with the English name appearing on the company s website, https://www.grohe.com. 4 The patent was granted on May 19, 2010. See 浙江健龙卫浴有限公司 高仪股份公司侵害外观设计专利权纠纷申请再审民事判决书 (Zhejiang Jianlong Sanitary Ware Co., Ltd. and Grohe AG, The Civil Judgment of an Application for Retrial of a Dispute over Infringement of an Exterior Design Patent) (2015) 民提字第 23 号民事判决 ((2015) Min Ti Zi No. 23 Civil Judgment), rendered by the Supreme People s Court on Aug. 11, 2015, full text available on the Stanford Law School China Guiding Cases Project s website, at http://cgc.law.stanford.edu/judgments/spc-2015-min-ti-zi-23-civil-judgment. According to Article 42 of the Patent Law, an exterior design patent lasts for ten years. Thus, this patent is not set to expire before May 18, 2020. 5 The name 浙江健龙卫浴有限公司 is translated herein as Zhejiang Jianlong Sanitary Ware Co., Ltd. in accordance with the English name appearing for it on the company s website, http://www.gllon.com. 6 The original text here has 丽雅系列等卫浴产品 ( the bathroom products in the Liya series, etc. ), while the judgment on which this Guiding Case is based has 丽雅系列卫浴产品 ( the bathroom products in the Liya series ). Further, in all instances below, the bathroom products of Jianlong Company at issue in this GC are taken together and referred to in the singular, e.g., the allegedly infringing product. 7 For images of the designs used in Grohe Company s product and the allegedly infringing product, see http://www.wanhuida.com/tabid/142/articleid/3008/default.aspx.
4 main view and left side view of [the product described in] the patent involved in the case show that the surfaces around [its] spray head are circular arcs. 2. The water outlet surface of the spray head of the allegedly infringing product is separated from the panel [enclosing it] by only one line, whereas the water outlet surface of the spray head of [the product described in] the patent involved in the case is separated from the panel [enclosing it] by a band consisting of two lines. 3. The outlet holes on the water outlet surface of the spray head of the allegedly infringing product are distributed in a way slightly different from that of [the product described in] the patent involved in the case. 4. There is an oblong oval switch designed on the handle of [the product described in] the patent involved in the case, whereas the allegedly infringing product has no [such switch]. 5. The spray head of [the product described in] the patent involved in the case is connected with the handle at a certain angle, but the angle is so slight that [the two parts] are connected in almost a straight line, whereas the spray head of the allegedly infringing product is connected with the handle at a greater angle. 6. The bottom view of [the product described in] the patent involved in the case [shows] that the bottom of the handle is round, whereas the bottom of the allegedly infringing product, when viewed from the bottom side, is a fan-shaped curved surface. The lower part of the handle of [the product described in] the patent involved in the case is a cylinder, and [the handle] gradually shrinks and flattens, giving the appearance of an oblate ellipsoid as it approaches the spray head. [However,] the lower part of the handle of the allegedly infringing product is a fan-shaped cylinder, and [the handle] remains a fan-shaped cylinder as it approaches the spray head except for a curved protuberance in the middle section of the handle. 7. A decorative line shaped like an arc is on the bottom part of the handle of the allegedly infringing product, connecting the bottom part of the handle with the back of the product, whereas the bottom part of the handle of [the product described in] the patent involved in the case has no such design. 8. The ratio of the length of the spray head to [the length of] the handle of [the product described in] the patent involved in the case is different from that of the allegedly infringing product. The arced surfaces of the two products where the spray head and handle connect are also different.
5 Results of the Adjudication On March 5, 2013, the Intermediate People s Court of Taizhou Municipality, Zhejiang Province, rendered the (2012) Zhe Tai Zhi Min Chu Zi No. 573 Civil Judgment, 8 rejecting Grohe AG s litigation requests. Unconvinced, Grohe AG appealed. On September 27, 2013, the Higher People s Court of Zhejiang Province rendered the (2013) Zhe Zhi Zhong Zi No. 255 Civil Judgment: 9 1. [The court] revokes the (2012) Zhe Tai Zhi Min Chu Zi No. 573 Civil Judgment [rendered by] the Intermediate People s Court of Taizhou Municipality, Zhejiang Province; 2. [The court orders] Zhejiang Jianlong Sanitary Ware Co., Ltd. to immediately cease the acts of manufacturing, promising to sell, and selling the product which infringes upon Grohe AG s Handheld Showerhead exterior design patent as well as to destroy [its] stock of the infringing product; 3. [The court orders] Zhejiang Jianlong Sanitary Ware Co., Ltd. to pay RMB 100,000 to Grohe AG as compensation for economic losses (which include reasonable expenses incurred by Grohe AG for the purpose of stopping the infringing acts); 4. [The court] rejects Grohe AG s other litigation requests. Unconvinced, Zhejiang Jianlong Sanitary Ware Co., Ltd. applied for a retrial. On August 11, 2015, the Supreme People s Court rendered the (2015) Min Ti Zi No. 23 Civil Judgment: 10 1. [The court] revokes the second-instance judgment; 2. [The court] upholds the first-instance judgment. Reasons for the Adjudication In the effective judgment, the court opined: 11 the focal point of the dispute in this case was whether the exterior design of the allegedly infringing product fell within the scope of protection of the exterior design patent involved in the case. Article 59, Paragraph 2 of the Patent Law provides: 8 This first-instance judgment has not been found and may have been excluded from publication. 9 This second-instance judgment has not been found and may have been excluded from publication. 10 See 浙江健龙卫浴有限公司 高仪股份公司侵害外观设计专利权纠纷申请再审民事判决书 (Zhejiang Jianlong Sanitary Ware Co., Ltd. and Grohe AG, The Civil Judgment of an Application for Retrial of a Dispute over Infringement of an Exterior Design Patent), supra note 4. 11 The original text does not specify which court opined. Given the context, this should be the Supreme People s Court.
6 The scope of protection of an exterior design patent is [determined] in accordance with the exterior design of the product [bearing the design] as shown in pictures or photographs. Brief explanations may be used to explain the exterior design of the product as shown in the pictures or photographs. Article 8 of the Interpretation of the Supreme People s Court on Several Issues Concerning the Application of Law in the Handling of Disputes over Patent Infringement (hereinafter referred to as the Interpretation on Disputes over Patent Infringement ) provides: 12 Where an exterior design that is the same as or similar to an exterior design for which rights have been granted is used in a type of product that is the same as or similar to the product bearing the exterior design for which rights have been granted, a people s court should determine that the allegedly infringing design falls within the scope of protection of the exterior design patent as provided for in Article 59, Paragraph 2 of the Patent Law. Article 10 provides: A people s court should determine whether the exterior designs [at issue] are the same or similar based on the level of knowledge and cognitive ability of a general consumer of the product bearing the exterior design for which rights have been granted. In this case, the allegedly infringing product and the product bearing the exterior design for which rights have been granted [(hereinafter the patented exterior design )] involved in the case are the same [in the sense that] both are showerhead products. Therefore, the key question in this case was whether, [in the eyes of] a general consumer, the exterior design of the allegedly infringing product and the patented exterior design involved in the case were the same or similar. Specifically, [this question] involved the following four issues. 1. Concerning the design features of the patented exterior design involved in the case The legislative purpose of the exterior design patent system is to protect innovative industrial designs that have aesthetic appeal. In order to be patented, an exterior design should have an identifiable innovative design to distinguish it from existing designs and the innovative design is the design features of a patented exterior design. Under normal circumstances, designers of exterior designs carry out [their] innovations on the basis of existing designs. [In cases where similar] products already exist, a patented exterior design generally has some content of existing designs and, at the same time, has design content 12 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 (Interpretation of the Supreme People s Court on Several Issues Concerning the Application of Law in the Handling of Disputes over Patent Infringement), passed by the Adjudication Committee of the Supreme People s Court on Dec. 21, 2009, issued on Dec. 28, 2009, effective as of Jan. 1, 2010, http://www.sdjnszfy.gov.cn/web/legal.do?me=info&id=42.
7 that is neither the same as nor similar to existing designs. It is precisely this part of the design content that makes the patented exterior design innovative, thereby satisfying the substantive requirements for granting rights as provided for in Article 23 of the Patent Law: [the design for which a patent is granted] shall not be part of an existing design and there shall not be any conflicting applications; 13 in addition, [the design for which a patent is granted] shall have obvious distinctions when compared with existing designs or combinations of existing design features. The description of this part of the design content constitutes the design features of the patented exterior design. [These features] manifest the innovative content of the patented exterior design that makes it different from existing designs and also manifest the designer s innovative contributions to existing designs. Because of the existence of these design features, a general consumer can easily distinguish the patented exterior design from existing designs. Therefore, [these design features] have a notable impact on the overall visual effect of the product bearing the exterior design. If an allegedly infringing design does not include all of the design features that distinguish a patented exterior design from existing designs, it can generally be presumed that the allegedly infringing design and the patented exterior design are not similar. With respect to the determination of design features, generally speaking, the patentee may record the design features in brief explanations [included in the patent application] and may make related statements about design features during the proceedings for granting and confirming patents or those [proceedings handling patent] infringement. According to the evidentiary rule whoever asserts must prove, 14 the patentee should prove the design features that he asserts. In addition, the purpose of the proceedings for granting and confirming patents is to examine whether an exterior design is patentable. Therefore, relevant records regarding the document review made during the process have referential significance that is important for confirming design features. In ideal situations, the granting and confirming of an exterior design patent should be based on a search of all existing designs [saved in a database] to identify contrasting designs against which the patentability [of said exterior design] can be judged. However, for various reasons, including the limitations of the search database and the limited search capabilities of those applicants who request that [certain patents] be declared invalid, design features confirmed by the relevant document review [conducted] during the proceedings for granting and confirming patents may not be based on a search of all existing designs [in the database]. Therefore, if a third party raises an objection to a design feature, either proven by evidence adduced by the patentee or confirmed by records of a document review made during [the 13 Article 23 of the Patent Law requires that, for an exterior design to be patented, inter alia, prior to the date when the patent is applied for, no entity or individual has filed an application with the patent administrative department of the State Council on an identical exterior design and recorded it in [any] patent document published after the date of application. ( 没有任何单位或者个人就同样的外观设计 [ ] 向国务院专利行政部门提出过申请, 并记载在申请日以后公告的专利文件中 ) 14 For more discussion of evidentiary rules in patent litigation, see, e.g., DOUGLAS CLARK, PATENT LITIGATION IN CHINA 105ff. (Oxford University Press, 2011), https://books.google.com/books?isbn=0199730253.
8 proceedings for] granting and confirming patents, [the third party] should be allowed to provide counter-evidence to overturn [the conclusion]. A people s court shall, on the basis of crossexamination opinions heard from all the parties, fully review the evidence and confirm, in accordance with law, the design features of the patented exterior design. In this case, patentee Grohe Company asserted that the runway-like water outlet surface is a design feature of the patented exterior design involved in the case. Jianlong Company disagreed. On this, the court opined [as follows] in the effective judgment. 15 First, [in Grohe Company s application] for the patented exterior design involved in the case, there were no brief explanations recording its design features. During the second-instance adjudication, Grohe Company submitted 12 documents regarding exterior design patents [connected with] showerhead products, seven of which recorded dates of announcement that preceded the date of application for the patent involved in the case. None of the exterior designs shown in the pictures attached [to the documents] used the runway-like water outlet surface. During a review process focusing on a request for a declaration that the patented exterior design involved in the case was invalid, the Patent Reexamination Board issued the No. 17086 Decision, making a determination concerning the comparison between the patented exterior design involved in the case and the closest contrasting design [(]Evidence 1[)]: Looking at the overall shapes, a comparison with [the product bearing] the design previously made public [reveals that the product described in] this patent is quite different in the shapes of the spray head and its transitions on every side, in the design of the water outlet area on the front of the spray head, and in the ratio of the width of the spray head to the diameter of the handle. All of the above-mentioned differences are design content which a general consumer would easily notice. [In other words, in] the [No. 17086] Decision, [the Board] determined that the design of the shape of the spray head s water outlet surface is one of the design features of the patented exterior design involved in the case. Second, although Jianlong Company did not agree [with the assertion] that the runway-like water outlet surface is a design feature of the patented exterior design involved in the case, [it] did not submit, during the first- or second-instance adjudication of this case, corresponding evidence to prove that the runway-like water outlet surface was an existing design. At the review stage of the retrial of this case, Jianlong Company submitted [some images with] views of the exterior design patent Showerhead No. 200630113512.5 to try to prove that [the design of the] runway-like water outlet surface had already been made public by existing designs. [The court,] after review, [ruled that] the exterior design patent [No. 200630113512.5] could have been used as an existing design [vis-à-vis] the patented exterior design involved in the case [because its] date of 15 The original text does not specify which court opined. Given the context, this should be the Supreme People s Court.
9 announcement preceded the date of application of the patented exterior design involved in this case. However, as shown in [an image of] the main view and the state of use reference diagram [of the exterior design patent No. 200630113512.5], the two ends of its water outlet surface are shaped like rectangles rather than circular arcs, and its water outlet surface is not runway-like. Therefore, this court [did] not support Jianlong Company s ground for an application for retrial[, i.e.,] that the runway-like water outlet surface is not a design feature of the patented exterior design involved in the case. 2. Concerning parts that are easy to directly observe when the product bearing the patented exterior design involved in the case is in normal use [Regarding] parts that are easy to directly observe when the product bearing the patented exterior design is in normal use, the determination should be made from the perspective of a general consumer, in accordance with the product s use, and after a comprehensive consideration of the various states of the product [when in] use. In this case, first, the patented exterior design involved in the case is the exterior design of a showerhead product. The showerhead product is composed of a spray head and a handle, and the ratios of the space occupied by [each of] these two [parts] to the [space occupied by] the entire product structure are not that different. The showerhead product can be handheld and can also be hung on the wall for use. In states of normal use, [in the eyes of] a general consumer, the spray head and the handle as well as [the part] where they connect are all parts [of the product] that are easy to directly observe. Second, [in] the No. 17086 Decision, [the Board] determined that a design previously applied for [()Evidence 2[)] and the patented exterior design involved in the case use the same runway-like water outlet surface. However, in the patented exterior design involved in the case: [ ] the spray head and the handle are one piece; the spray head itself and all the surfaces connecting [the spray head] with the handle are arced surfaces; and the spray head tilts forward. Compared with the design previously applied for, [the patented exterior design involved in this case] is quite different. The above-mentioned differences are design content which a general consumer easily notices. Based on [the above considerations], [the Board] determined that these two exterior designs are neither the same nor similar. It is, therefore, clear that for showerhead products, parts that are easy to directly observe are not limited to the water outlet surface of the spray head. When making a comprehensive determination of the overall visual effect of a showerhead product s exterior design, its spray head, handle, and [the part] where they connect should all be considered as parts that are easy to directly observe.
10 3. On whether the push-button on the handle of [the product bearing] the patented exterior design involved in the case is a functional design feature Functional design features of an exterior design refer to those features which, in the eyes of a general consumer of the product bearing the exterior design, are settled on solely [on the basis of] specific functions that the product must perform and for which aesthetic factors are not considered. Under normal circumstances, when a designer is working on the exterior design of a product, he considers both functional factors and aesthetic factors. On the precondition that the product [is to] perform [certain] functions, [the designer] adheres to rules and laws of human behavior to improve the exterior [design] of the product. [In other words,] a product must first perform its functions and then have aesthetic appeal visually. In most cases, a specific feature of an exterior design is both functional and decorative. The designer will choose, among multiple designs that can perform specific functions, a design that he considers to have the most aesthetic appeal. Designs that are settled on solely [on the basis of] specific functions exist only in very few special cases. Therefore, the functional design features of an exterior design include two types: (1) [a design feature that is] the only design that achieves specific functions; (2) [a design feature that is] one of the many designs that perform specific functions but is settled on solely [on the basis of] specific functions that need to be performed and [that is a design for which] a consideration of aesthetic factors is irrelevant. The determination of functional design features does not hinge on whether the design is the only option because of limitations arising from functional or technical conditions but on whether the design, in the eyes of a general consumer of the product bearing the exterior design, is settled on solely [on the basis of] specific functions and there is no need to consider whether the design has aesthetic appeal. Generally speaking, functional design features do not have a notable impact on the overall visual effect of an exterior design. For [evaluating] the impact, on the overall visual effect, of design features that are both functional and decorative, [one] needs to consider how strong the decorative features are: the more decorative they are, the bigger impact they have on the overall visual effect, and vice versa. In this case, one of the distinctions between the patented exterior design involved in the case and the exterior design of the allegedly infringing product is that the latter lacks the runwaylike push-button design that the former has on its handle. The function of the push-button is to turn the water flow on and off. [The choice of] whether or not to install a push-button component is made [based on] whether or not there is a need on a showerhead product to perform the function of turning the water flow on and off. However, once a push-button is [to be] installed on the handle of a showerhead, the shape of the push-button may take various designs. When a general consumer sees the push-button on the handle of a showerhead, he will naturally notice its decorative nature and consider whether the design of the push-button has aesthetic appeal. He will
11 not merely consider whether the push-button can perform the function of turning the water flow on and off. [When] the designer of the patented exterior design involved in the case chose to design the push-button on the handle like a runway, his purpose was to coordinate it with the runway-like water outlet surface, thereby increasing the overall aesthetic appeal of the product. Therefore, when determining that the push-button of [the product bearing] the patented exterior design involved in the case is a functional design feature, the second-instance judgment [was based on] erroneous applications of law, which were corrected by this court. 4. On whether the exterior design of the allegedly infringing product and the patented exterior design involved in the case are the same or similar Article 11 of the Interpretation on Disputes over Patent Infringement provides: When determining whether exterior designs [at issue] are the same or similar, [a people s court] should, based on the design features of the patented exterior design and [those of] the allegedly infringing design, carry out a comprehensive judgment of the overall visual effects of the exterior designs. [The court] should not consider design features that are settled on primarily [on the basis of] technical functions [ ]. [The following] usually have more impact on the overall visual effect of an exterior design[:] [1] Parts that are easy to directly observe when the product is in normal use, as compared with other parts [of the product]; [2] Design features that distinguish the patented exterior design from existing designs, as compared with other design features of the patented exterior design. In this case, the comparison was between the exterior design of the allegedly infringing product and the patented exterior design involved in the case. The outlet holes [of the former] are distributed over an area, on the front of the spray head, that is like a runway. Although there are some differences in the number of outlet holes and their distribution at the two ends of the water outlet surface of [the allegedly infringing product] and [the product bearing] the patented exterior design involved in the case, overall, the allegedly infringing product uses a runway-like water outlet surface design that is highly similar to the patented exterior design involved in the case. As for the design features that distinguish the two products from each other, the firstinstance court summarized eight aspects, with which neither party disagreed. Of these [eight] distinguishing design features, first, as mentioned above, [in] the No. 17086 Decision, [the Board] determined that three are design features of the exterior design patent involved in the case: 16 (1) 16 The court explained earlier: In order to be patented, an exterior design should have an identifiable innovative design to distinguish it from existing designs and the innovative design is the design features of a patented exterior design. This, together with the main text referenced here, suggests that not all distinguishing design features
12 the shapes of the spray head and its transitions on every side, (2) the shape of the spray head s water outlet surface, and (3) the ratio of the width of the spray head to the diameter of the handle. In addition to the design feature of the shape of the spray head s water outlet surface, [the other two] design features the shapes of the spray head and its transitions on every side and the ratio of the width of the spray head to the diameter of the handle also have a notable impact on the overall visual effect of the product. The exterior design of the allegedly infringing product uses a runway-like water outlet surface that is highly similar to [that of] the patented exterior design involved in the case. However, with respect to the design feature of the shapes of the spray head and its transitions on every side, the spray head and the handle of [the product bearing] the patented exterior design involved in the case and their connection all have circular-arc transitions on every side, whereas the spray head and the handle of the exterior design of the allegedly infringing product and their connection all have sloping transitions on every side, revealing obvious differences between the two products in their overall design styles. Further, design features that are not [classed as] design features [of the exterior design patent involved in the case, as determined by the Board,] but [are such that they can] distinguish the exterior design of the allegedly infringing product from the patented exterior design involved in the case should also be considered, so long as they reveal obvious differences between the two [products] in their overall visual effects. In addition, the spray head and the handle of a showerhead product as well as their connection are parts that are easy to directly observe when the product is in normal use. When a comprehensive judgment of the overall visual effect is made, designs of the above-mentioned parts should be examined closely. Specifically, a runway-like push-button is installed on the handle of [the product bearing] the patented exterior design involved in the case, whereas there is no such design in the allegedly infringing product. Because the push-button is not a functional design feature, whether or not there is such a distinguishing design feature will have an impact on the overall visual effect of the product. [Also,] the spray head and the handle of [the product bearing] the patented exterior design involved in the case are connected at a smaller angle, whereas the spray head and the handle of the allegedly infringing product are connected at a greater angle, revealing obvious differences between the two [products] in their left side views. It is precisely because the exterior design of the allegedly infringing product does not include all of the design features of the patented exterior design involved in the case and [does not include] the design features (of the designs used on the handle, on the connection between the spray head and the handle, etc.) which distinguish the exterior design of the allegedly infringing product from the patented exterior design involved in the case that there are obvious differences between the two [products] in their overall visual effects. [Therefore,] the two [products] are are design features of a patented exterior design and only those distinguishing design features that are innovative can be deemed design features of a patented exterior design.
13 neither the same nor similar, and the exterior design of the allegedly infringing product did not fall within the scope of protection of the exterior design patent involved in the case. [The court rendering] the second-instance judgment only closely considered the design feature of the runway-like water outlet surface of the patented exterior design involved in the case. It did not consider other design features of the patented exterior design involved in the case, nor [did it consider] other design features which distinguish the exterior design of the allegedly infringing product from the patented exterior design involved in the case and which appear on parts that are easy to directly observe when the showerhead product is in normal use. [The court s] determination that the two exterior designs are similar [was based on] erroneous applications of law, which were corrected by this court. In conclusion, the exterior design of the allegedly infringing product that Jianlong Company produced, promised to sell, and sold and the patented exterior design owned by Grohe Company and involved in the case are neither the same nor similar. [The exterior design of the allegedly infringing product] did not fall within the scope of protection of the exterior design patent involved in the case. Jianlong Company s acts of producing, promising to sell, and selling the allegedly infringing product did not constitute infringement of the patent of Grohe Company involved in the case. The second-instance judgment [was based on] erroneous applications of law, which were corrected by this court in accordance with law. (Adjudication personnel of the effective judgment: ZHOU Xiang, WU Rong, and SONG Shuhua)