[Direct answer]In the Beijing area, the standard person for making a similarity judgment is the "general consumer". The method is to conduct an overall observation and comprehensive judgment: taking the parts that are most easily observed when the product is in normal use as the benchmark, comparing the similarities and differences in the overall visual effect between the authorized design and the design being sued, with the authorized design features having a higher weight and the functional design features having a lower weight; if there are no substantial differences in the overall visual effect, it constitutes similarity and falls within the scope of patent protection.

1. Problem background and typical scenarios

The scenario of judging similarity in appearance runs through the entire life cycle of a patent: pre-application novelty search (whether one's own design is novel enough), comparison during rights protection (whether the other party's product falls within the scope of protection), and defense during litigation (whether the design differences are substantial and whether the existing design defense can be established). The closer the product forms are (both small appliances or packaging boxes), the more intense the similarity disputes will be. The difference in the appearance of a product may result in a compensation gap of millions of yuan.

II. Key points of contention

First, assessing the simulation of the subject. The judge uses the knowledge and cognitive abilities of "average consumers" as a benchmark - they have common sense but lack professional design skills. Neither are they overly demanding nor indulgent. Both parties will try to tilt the judgment criteria in their favor. Second, assessing the weight of design features. Authoritative features (novel and unique, and parts that contribute significantly to the overall visual effect) dominate the judgment; functional features (shapes determined solely by function) and conventional designs (industry-standard shapes) carry lower weight. Third, comparing the corresponding objects. Only the appearance of products of the same or similar types is compared, and the consistency between the design disclosed in the pictures and photos and the actual products is verified as a prerequisite.

III. Professional analysis by Henglue Law Firm

A similar "algorithm" can be broken down into actionable steps. First, identify the comparison objects: Use the images or photos of the patented product as the basis and exclude usage state diagrams; prepare photos of the defendant product from the same position, viewing angle, and usage state. Subjective photos and renderings may introduce biases. Second, list the differences: List the differences between the two designs one by one—outlines, proportions, surface differences, patterns, and colors (only consider patents that explicitly request color protection). Classify each difference: differences in authoritative features (decisive), functional or conventional design differences (low weight), and differences in parts not easily visible during use (low weight). Third, conduct an overall evaluation: Answer the question from the perspective of ordinary consumers—whether there are substantial differences in the overall visual effect of the two designs. The key point is not the number of differences, but "where the differences lie". Even minor differences in authoritative features may constitute substantial differences, while numerous differences in conventional designs may not affect the conclusion. Fourth, organize offensive and defensive evidence: The rights holder uses market research, confusion examples, and consumer comments to support "overall similarity"; the defendant uses two defenses—existing design defense (the defendant's design belongs to an existing design or its simple combination) and distinguishability defense (differences are concentrated in authoritative features). If necessary, apply for an expert witness to testify on design space and feature weight. Practical advice for enterprises: Before protecting a design, conduct a search and freedom-to-operate analysis to confirm the stability of their patent (sufficient uniqueness of authoritative features); when sued, conduct FTO and invalidation searches immediately. "The patent itself is unstable" is often more effective than point-by-point defense. In Beijing-based design patent cases, the depth of argumentation on design space and feature weight is high. Simple "visual similarity" arguments cannot stand up to written comparisons. Creating a visual comparison chart of the differences is a must-do task for both lawyers.

IV. Practical suggestions and legal basis

The first step is to unify the benchmark: take pictures of the patent images and the actual products from the same angle to establish a comparison benchmark. The second step is to categorize the differences: item by item, mark the authorization, functionality, and conventionality to form a weight analysis. The third step is to conduct an overall evaluation: draw conclusions from the perspective of ordinary consumers, supplemented by evidence of confusion or existing design searches. The fourth step is to select the procedure: conduct a two-pronged evaluation of infringement comparison and invalidation declaration, with the defendant conducting a search first and then presenting defenses. Main legal basis: Article 2 and Article 64 of the Patent Law of the People's Republic of China (amended in 2020); Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trials of Patent Infringement Disputes (I and II) regarding the comparison of design; the Patent Review Guidelines regarding the judgment criteria for similarity in design; specific applications shall be subject to the currently effective regulations.

5. Henglu Law Firm's Advice

The judgment based on similar appearance is not an aesthetic vote, but a technical argument about the weight of features: the more professional the classification of the list of differences, the closer the conclusion will be to the referee's decision. Before protecting rights, check the stability; after being sued, check the existing design. These two searches always come before the comparison. For comparisons involving appearance patents, you can use the following methods:Intellectual property protection and corporate lawFor obtaining a comprehensive solution for services involving invalidation declaration and rights confirmation procedures, please refer to the patent invalidation topic in this batch. For issues related to trademark and packaging decoration confusion, please combine with the evidence collection topic in this batch. For matters concerning the construction of an enterprise's intellectual property system, please pay attention to itBusiness and contract disputes in enterprisesThe slides, which involve comparing the graphic evidence with the arrangements made by the expert assistants, can be used as a referenceSpecialised legal servicesFor those interested in the enforcement of compensation claims, you can pay attention to the following sectionsCreditor's rights and debts, and enforcement cases板块。

VI. Frequently Asked Questions

Q1: Do different colors count as similarities?

When a patent requests protection for colors, the colors are considered as comparison elements, and those not requested for protection are not taken into account. The impact of colors combined with shapes and patterns on the overall visual effect will be evaluated on a case-by-case basis.

Q2: Do we need to compare functional designs?

It's a comparison, but with low weight. The appearance determined solely by function does not constitute an authorized contribution. Differences concentrated in this area usually do not constitute similarities.

Q3: What are the standards for ordinary consumers?

Simulating a virtual group that has common sense about this type of product, but lacks professional design capabilities, the court observes and judges the case based on this benchmark as a whole.

Q4: What is the most effective defense for the defendant?

There are two main defenses against patent infringement: the existing design defense and the authorization feature defense. Identifying existing designs that undermine the stability of a patent can often be a decisive blow to the patent holder's position.

Q5: Should experts be called to testify in cases involving approximate judgments?

For highly controversial cases, it is possible to apply for an expert assistant to provide opinions on design space and feature weight, thereby enhancing the persuasiveness of the argumentation.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify regional differences.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Intellectual property protection legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.