关于外观设计的立法宗旨有“标识说”和“创新说”两种学说,前者侧重区别识别,后者侧重鼓励创新,与此相关的重要问题是外观设计的授权要件。多数发达国家的立法对此一般有新颖性和创造性两方面要求,我国则仅规定了新颖性的单一要件,理论上和实践中引起一定争议。在专利法的修改过程中提高授权标准是必然选择,应当对外观设计的创造性要件作出明确规定。 The purpose of the legislation on the appearance of design are “logo ” and “innovation ” two theories, the former focuses on the difference between the recognition, the latter focuses on encouraging innovation, and the related important issue is the design elements of the mandate. Legislation in most developed countries generally requires both novelty and creativity. Our country only sets forth the single requirement of novelty, which has caused some controversy both in theory and in practice. In the process of revising the Patent Law, it is an inevitable choice to raise the standard of authorization. The creative elements of the design should be clearly stipulated.