The Supreme People’s Court sets the rule: when comparing designs, attention should be given to the overall visual similarities rather than to the partial effects generated by the distinguishing features.

Guangdong Midea Electric Appliances Co., Ltd (herein hereinafter referred to as “Midea”), is the owner of the design patent No. ZL200630067850.X, titled as "Wind Turbine" (hereinafter referred to as “Midea’s design”) which was granted by the SIPO on August 3, 2006. On February 20, 2009, Zhuhai GREE Electric Appliances, Inc. (hereinafter referred to as “GREE”) filed a request for invalidation of Midea’s patent for design with the PRB. The parties involved in the dispute are two Giants in the air conditioner industry in China.

In GREE’s invalidation request, four reference documents were cited to challenge Midea’s design on the grounds of having no substantial difference. Through examination and oral hearing, the PRB made a decision in June 2009 declaring that the patent for design be invalid. In the decision, the panel supported GREE’s allegation and chose one of the reference documents (CN3265720, a prior design patent) to make a detailed comparison. The PRB concluded that a patent for design shall be deemed to be similar to the prior design if their differences exist only in the size and the tiny distinction of partial details.

Midea instituted administrative litigation against the PRB before the Beijing No. 1 Intermediate People’s Court. The court supported the PRB’s analysis regarding the identical aspects and the 4 different aspects between Midea’s design and the prior design. However, the court disagreed with the comprehensive judgment of the PRB and held that the three different aspects distributed in the central area of the design in addition to the different rotation direction could create an overall visual effect capable of allowing a a common consumer to distinguish both designs. Thus, the court concluded that Midea’s design is not similar to the cited prior design and should not be invalidated.

Both the PRB and GREE appealed to the Beijing High People’s Court. The high court upheld the decision made by the intermediate court of the 1st instance.

Still unsatisfied with the above-mentioned judgment made by the Beijing High People’s Court, the petitioner, GREE filed before the Supreme People’s Court a petition for retrial of the case and the petition was accepted. After the hearing, the Supreme Court revoked, in 2011, the administrative judgments made by the 1st instance and 2nd instance courts, and upheld the invalidation decision (No. WX13585) made by the PRB. GREE won the case finally.

Key points of the Supreme Court’s decision:

The principle method, as stipulated by the Guidelines for Patent Examination, to determine whether or not two designs are identical or similar, is to proceed with an over-all observation of the design as compared with the prior design, based on the knowledge level and cognitive ability of an ordinary consumer, and to make a comprehensive judgment on whether or not the difference between them is significant on the visual effect of the design.

In the present case, the PRB and the courts shared the same opinion regarding the different aspects between Midea’s design and the cited prior design. The focus lied in how to proceed with the overall observation and make a comprehensive judgment. By comparing Midea’s design with the cited prior design, the Supreme Court held that the differences between them could NOT make the design in dispute sufficiently distinct from the prior design in overall visual effect. Both of the 1st and the 2nd administrative judgments failed to consider the visual effects contributed from those common features of the design; instead, they only focused on the partial effects generated by the distinguishing features, which definitely lead to improper judgments.

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The Supreme People’s Court made clarifications on issues in respect of principles of determination of similarity and identity of designs. The way of determination should not be only focused on the visual effects of the different aspects between the patented design and the prior design. The same or similar design features in the whole design should also play an important role in the overall observation and comprehensive judgment when making a decision. The Supreme Court’s decision on the case of Midea’s design provides guidance to the administrative and judicial organs for the future practice of design patents in China.