将外观设计与发明、实用新型合并于一部法律,滥觞于作为现代专利法雏形的《暂行工艺品奖励章程》,形成于1944年《中华民国专利法》.1984年立法者选择将外观设计制度纳入专利法源自立法便利选择.从国际角度而言,存在以日欧为代表的单独立法模式、以英法为代表的专利版权双重保护模式和以美国为代表的纳入专利制度保护模式.美国模式具有历史偶然性,并且在船舶外观设计、时尚外观设计等方面存在单独立法的积极探索,单独立法代表了主流趋势.基于产品的功能性和设计的非功能性,外观设计制度与专利制度不会内生出共性的法律规则.我国外观设计法律实践在授权确权、侵权判定中出现的诸多问题,根源在于非内生共性规则的简单参照.可以考虑在此次修订专利法时将共性条款规定于总则后,将外观设计相关规定独立成编,未来尽快研究形成独立的外观设计法,立足外观设计根本属性建构客体主体、授权确权、侵权救济等规则,实现外观设计单独立法、内在协调、立体保护、创新发展.%The Provisional Handicraft Award Statute was the early form of modern Patent Law, which put patent, utility model and design into one law. The 1944 Patent Law of Republic of China inherited the above legislation model. For convenience, the 1984 Patent Law of PRC also incorporated design into Patent Law. As far as international experiences concerned, there are independent legislation model as represented by Japan and some European countries; patent-copyright double protection model as represented by England and France; and the incorporation of design into Patent Law model as represented by the US. The US model is of historical contingency. It has always been actively exploring the possibility of independent legislation for ship design and fashion design. Generally speaking, independent legislation is the major trend. Given the functionality of product and the non-functionality of design, it is impossible to generate inherent common legal rule between design regime and patent regime. The problems concerning empowerment, right confirmation, and infringement judgment in relation to Chinese design legal practices are mainly due to the simple reference to non-inherent common rules. The paper suggests, for the recent Patent Law revision, to place the clauses with common nature behind the general provisions, and make the legislation on design an independent chapter. It is strongly recommended to enact independent Design Law in the future. To establish rules on subject, object, empowerment, right confirmation, infringement and relief based on the fundamental attribution of design, so as to realize independent legislation, inherent harmonization, all-round protection, and innovative development of design.
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