本文建议:明确我国外观设计专利确权标准包括新颖性和创造性两个层次,其中新颖性判断主体为一般消费者,创造性判断主体为本领域普通设计人员;明确我国外观设计专利侵权判断标准低于确权标准,与我国外观设计确权标准中的新颖性标准一致,即采用相同或相近种类产品的外观设计的单一对比方式判断是否构成相同或实质相同,判断主体也为一般消费者。2008年《专利法》第二十三条第一款、第二款的规定将外观设计确权标准分为两个层次:第一层次类似于新颖性标准,规定授权外观设计专利不应属于现有设计,也不能与在先申请抵触;第二层次类似于创造性标准,规定授权外观设计与现有 The paper suggests: to make clear that the standards of design patents in our country include both novelty and creativity. The main body of novelty judgment is general consumer, and the main body of creative judgment is common designer in this field. It is clear that the judgment standard of design patent infringement in our country is lower than The standard of right of confirmation is consistent with the novelty standard in our country’s standard of design right of confirmation. That is to say, the single comparison mode of appearance design using the same or similar kinds of products determines whether they constitute the same or substantially the same, and the judgment body is also an ordinary consumer. The provisions of the first paragraph and the second paragraph of Article 23 of the Patent Law of 2008 divide the standard of design right of confirmation into two levels: the first level is similar to the novelty standard, and the requirement that design patents granted by design should not belong to the present There is design, and can not conflict with the earlier application; the second level is similar to the creative standards, the provisions of the authorized design and the existing