Answers to Case Study

1. (1) Yes, the defendant’s act has obviously infringed the plantiff’s industrial design patent right. In consequence, plantiff’s requirement of the defendant’s stopping producing and selling the products and paying damages should be justified by the court.(2) According to the definition in the textbook, industrial design patent right means that any new design of the shape, pattern or their combination or the combination of the colour with shape or pattern of a product that creates an aethetic feeling and is fit for industrial application, which is one kind of patent right.定义The regulation of Article 2 of Patent Law in this Law，that“inventions-creations” mean inventions，utility models and designs, infers that industrial design is protected as the objuct of patent right.As is ruled by law, the duration of protection of industrial design is 10 years.有效期(3) According to the case, the shaver with brand of Gillette is a famous quality product made by Gillette company of the USA. The company applied and was granted patent right for its new design in 1993.事实Therefore, we are sufficiently convinced that Gillette company of the USA definitely possesses industrial design patent right of the new designed Gillette shaver, and that the product of Gillettee company is identical with the requirement of the definition, characteristics and patentability of industrial design patent right. Since the Gillette company sued Hangzhou’s plant in 1997 when the protection of its industrial design is still within the duration of protection, the patent right is effective.有权，权有效(4) Any conduct that, a third party makes exploitation of the industrial design without the license from the patentee, or other legal basis, must be justified as acts of infringement to patent.侵权的定义Refering to Article 11 of Patent Law, after the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, sell or import the product incorporating its or his patented design, for production or business purposes.And such misconduct has the identical characteristics of general acts of infringement in Civil Law. Firstly, the misconductor exploits other’s patent without permission; Secondly, the misconduct is neither approved of in a contract, nor permitted by law.侵权的特征As is mentioned in the case, the kind of disposable bilayer razor produced in Hang Zhou, similar to the Gillette’s patented one on China’s market, has been produced and sold without any permission of Gillette company, based on which we can draw a conclusion that Hangzhou’s plant has produced and sold a patented industrial design without thepatentee’s permission. Such act composes an infrignment of the patent owner’s right.In addition, the court has reaffirmed the infringement: The Hangzhou plant’s products were really somewhat different from the plaintiff's the aspects of head and handle and its products as a whole were also different from the defendant’s, the two kinds of products as a whole were still rather similar with each other in spite of products structure difference.事实（5）All in all, Hangzhou’s plant has violate Gillette’s patent right of industrial design. And the Gillette company in the USA’s requirement that the plantiff should stop producing and selling infringed products and claiming for damages from the defendant ought to be justified as well as approved of by the court.2.(1) Refering to 7.1 and 7.2.1 of Chapter 5 of Part 4 of “Manual of Patent Examining Procedure”, f or industrial right,The identicality of the design refers to that the compared design and the earlier design are the designs of the products in the same class; and all the elements of compared design are identical with the corresponding elements of the earlier design. Wherein, the design elements refer to shape, pattern and color.The products in the same class refer to the products which have the same use.Similarity of Design can be defined that, only for the products in the same or similar class, may the similar designs exist. The so-called products in similar classes refer to the products the use of which is similar.(2) No, the slight difference in aspects of shape, structure between two products can not be regarded as “different” or “not similar”.According to 6.2.3 of Chapter 5 of Part 4 of “Manual of Patent Ex amining Procedure”, we can be convinced that, a design which is a combination of existing design or some features of them, including slight difference from the corresponding parts of the existing design, should be considered as Similarity of Design.In addtion, substituting for another identicle or similar features of other designs, or combining or subsituting the shape, colour and structure for an existing one, neither of both must not be regarded as “different” nor “not similar”.So in the case, Hangzhou’s plant’s pro ducts should be deemed to be a identicality or similarity other than different or not similar.。