本文将专利权的变动作为一种法律事实,分析了专利权的存续和消灭对适用反不正当竞争法保护商业外观时产生的多种影响。与传统观点相反,本文通过对美国立法、司法及学说进行分析和评论,认为专利法与反不正当竞争法的价值冲突应当通过限制商业外观保护要件的方式间接地加以调和。专利权的垄断性并不必然影响商业外观固有或经使用而获得的显著性,只要同类商品市场中仍然存在有效的竞争或符合公共利益,则显著性标准仍有适用的余地。而非功能性标准则要求商业外观不能起到发挥商品目的的关键作用,或对其成本、质量产生影响;而在专利权消灭后,对外观的保护也并不妨碍他人对发明创造进行复制并以此方式进行正当的竞争。最后,本文认为特定商业外观存在专利权的事实,只能作为构成要件认定时的参考,其是否构成反不正当竞争法保护的客体,仍应当以司法认定为唯一标准。 This article takes the change of patent right as a kind of legal fact, and analyzes the various influences that the existence and elimination of patent right have on the protection of business appearance by applying the anti-unfair competition law. Contrary to traditional viewpoints, this article analyzes and comments on the legislation, judicature and doctrine in the United States. It holds that the value conflict between patent law and anti-unfair competition law should be reconciled indirectly by restricting the elements of commercial appearance protection. The monopolistic nature of patent rights does not necessarily affect the salientness of the appearance of the business appearance or its use. As long as there are still valid competitions in the market of the same kind of goods or are in the public interest, there is still room for the saliency standard. Non-functional standards require that the commercial appearance does not play a key role in the commercial purpose or has an impact on the cost and quality of the commercial appearance, and the protection of the appearance does not prevent others from copying the invention and creation after the patent right is extinguished In this way legitimate competition. Finally, this article holds that the existence of the patent right in a particular commercial appearance can only serve as a reference when identifying the constituent elements, and whether it constitutes the object of protection against unfair competition law should still be determined by the judiciary as the sole criterion.