GROHE AG (“GROHE”) owns a design patent titled “hand-held spray shower”.  GROHE found that Zhejiang Jianlong Co., Ltd. (“JIANLONG”) manufactured, sold, and promised to sell a kind of products very similar to the one protected by the design patent, so GROHE launched a legal action against JIANLONG before the court of first instance (Intermediate Court of Taizhou City).

The court of first instance ruled that the product of JIANLONG did not infringe the design patent right, because the product was different from the patent in its peripheral part of the shower head,the whole shape of the handle, the connection part of the head of handle and the proportion of each parts. The court of first instance held that the above differences constituted substantial differences to the overall visual effects of the product although the judges did recognize similarity in the water outlets faceplate between the alleged design patent and the product of JIANLONG.

GROHE appealed before court of second instance (Higher Court of Zhejiang Province). GROHE emphasized in the appeal that the obvious similarity in the key part (water outlet faceplate) brought in great influences to the overall visual effect by comprehensive observation.  TheHigher Court supported GROHE’s argument and made a judgment in favor of GROHE.

JIANLONG filed a retrial with the Supreme Court and the Supreme Court affirmed that:

1)In the Decision issued by Patent Reexamination Board (PRB), the PRB identified that the design patent has serval characterized designing features relative to prior designs, such as the water outlets faceplate, the buttons on handle and so on;

2)The buttons on handle cannot be seemed as a function feature of the spray shower since the buttons arrangement is specially designed toconform with the the whole shape of the handle and the water outlets faceplate. This buttons arrangement is not an only option for function but a characterized design feature.

3)Since the product of JIANLONG fails to contain all of the design features of the design patent (The product of JIANLONG does not have the buttons on handle illustrated by the design patent), it does not constitute an infringement of the design patent owned by GROHE.

The basic logic from this case is that, similar to technical patents, if a design comprises several innovative features (similar to technical features in claims) and the accused product does notcover all the features, then no infringement will found.  This logic could cause a really dangerous fact that, if someone only takes copy of a part of features of a granted design, he may escape from infringement.  Luckily, in the new Patent Law to be revised next year, a “partial design” system will be adopted and risks brought by this case, hopefully, shall be eliminated.