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A Guide to Chinese Design Patent Application

Brief explanation of the design patent

Chinese patent law provides design patent protection for any “new design of a product’s shape, pattern, or combination thereof, or the combination of its colour and shape or pattern, that creates an aesthetic feeling and is fit for industrial application”.

Article 27 of the amended patent law stipulates that a brief explanation describing the design feature to be protected be included with any design patent application. This amendment should be a positive change for protecting patented design features that are incorporated as part of products.

The patent law provides that the scope of protection afforded a design patent is to be determined by referencing only the drawings or photographs in the patent file; and in cases where a design feature is incorporated in a product, the drawings or photographs of the patent application must show the design feature together with the product. It should also be noted that unlike other jurisdictions, which allow the use of dashed or dotted lines in their application drawings to delineate the design feature, in China, drawings that are to be submitted with a design patent application must use solid lines of even thickness.

Based on current law and practice, the courts and the Patent Reexamination Board (PRB) have sometimes encountered difficulties in discerning the inventive design feature of a product from drawings and photographs of the product that were submitted with the design patent application. Accordingly, this amendment will assist the courts and the PRB in distinguishing design features from their associated products.

Multiple designs in one patent application

Article 31 of the amended patent law is one of the essential revisions to design patent law and is referred to as the “affiliated design” clause.

Under the patent law, a single design patent is limited to one design. If design protection is sought for two or more similar designs associated with the same product (affiliated designs), multiple applications would need to be filed. In some cases this has led to the earliest design application being cited as conflicting with the later application(s) during examination or invalidation proceedings.

The amended patent law will allow two or more affiliate designs to be submitted together in one application provided that the brief explanation designates one fundamental design (core element) and that the affiliate designs share the same core element.

Overall, the “affiliated design” clause should provide greater protection for affiliated designs.

Designs are one of the three categories of patents along with inventions and utility models.  While all three categories share numerous provisions of the China patent Law, in some instances designs diverge from the other two, and it is worthwhile to explore designs individually. 

"Design" in the China patent law is defined as any new design, shape, the pattern or their combination, or the combination of the color with shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application.  As noted previously, the duration of the patent right for a design patent is 10 years.

Whereas the protection right for an invention or utility model is defined by the claims, designs rely on drawings or photographs depicting the patented design.  The drawings or photographs are limited in size, and may be accompanied by a brief explanation of the design.  An applicant seeking a design patent must submit these drawings or photographs along with a request and the product incorporating the design, and the class to which that product belongs.  The application is limited to one design incorporated in one product.

Once filed, the application is only subject to a preliminary examination as to compliance with formal requirements.  The preliminary examination is essentially an expedited process to a patent grant so long as the design at issue is not identical with, or similar to any design, which before the date of filing, has been publicly disclosed in publications anywhere, and must not collide with any prior legal rights obtained by any other person.  SIPO will make a decision to grant the paten right for the design, issue the certificate, and register and announce it after the preliminary examination.

Once granted, a design patent operates much like a patent for an invention or utility model in protecting the rights of the patentee.  No entity or individual may, without authorization of the patentee, exploit the design by making, selling or importing any product incorporating the patented design.

Development of Chinese Design Patent

The patent system for designs was significantly adjusted under the Chinese Patent Law revised in 2008, including exclusion of “designs of two-dimensional printed goods which serve mainly as indicators” of low design level from patent protection, and addition of a new manner of filing one application for similar designs. Such adjustment brought about a certain influence on the trend of patent application for designs since the revised Patent Law entered into force. According to statistics, during the period from October 1, 2009 to October 1, 2010, a total number of applications filed for similar designs was 4,001, taking 1.1% of the total amount of applications accepted during the same period, the same proportion being 0.37% in a half year immediately before the revised Patent Law entered into force.

“In comparison with the period from 2006 to 2009, applications for designs of two-dimensional printed goods sharply decreased, and applications filed for similar designs slightly increased. Wherein, applications for similar designs filed by Chinese applicants were more than those filed by foreign applicants. These applications mainly related to products in the field of packaging boxes and power distribution products,” said by LIN Xiaoyue, the head of the design examination department of the SIPO.

Decrease in applications for designs of two-dimensional printed goods, increase in applications for designs of stereoscopic packaging boxes:

As stipulated in item (6) of the first paragraph of Article 25 of the revised Patent Law, no patent right shall be granted for “designs of two-dimensional printed goods, made of the pattern, the color or the combination of the two, which serve mainly as indicators.”

The above stipulation brought about significant influence on the application amount of designs of two-dimensional printed goods such as packing paper, packaging bags, labels, etc., particularly labels,” Lin introduced to the reporter, “during January 2010 to September 2010, design applications increased by 16% as compared with the same period in 2009, while the number of applications for designs of two-dimensional printed goods such as packing paper, packaging bags, labels, etc. sharply dropped because the standard for granting a patent for designs of these kinds of goods was raised under the revised Patent Law. ‘Designs of two-dimensional printed goods which serve mainly as indicator’ set forth in the aforesaid stipulation mainly relate to labels of class 1908 (hereinafter referred to as class of label), packaging bags of class 0905 (class of bag) and packing paper of class 0506 (class of sheet material).”

It is learned that, among design applications, there were 10,818 applications of the class of label in 2006, and the number increased year by year and reached 15,396 in 2008. This number has dropped significantly since the revised Patent Law entered into force, only 5,016 applications from October 2009 to September 2010. Applications of the class of bag gradually increased from 8,674 in 2006 to 13,620 in 2009, and this number merely was 9,998 from October 2009 to September 2010 after the revised Patent Law entered into force. For applications of the class of sheet material, the number in 2008 was 6,752, which doubled that in 2006. This number decreased later and dropped to 5,480 during the year after the revised Patent Law took into force.

“On the contrary to the sharp decrease in the number of applications for designs of labels, applications for designs of stereoscopic goods like packaging boxes of the class 0903 (hereinafter referred to as class of stereoscopic packaging goods) significantly increase,” Lin said, “wherein, merely 13,103 applications for stereoscopic packaging goods were filed in 2006, and the number increased year by year. During October 2009 to September 2010, the total number of applications of this class was 24,434.”

According to statistics, in comparison with the number of applications for designs of the same classes filed during the period from 2006 to 2009, percentages of applications for designs of labels, bags and sheet material with respect to the total application number all decreased after the revised Patent Law entered into force, wherein applications relating to labels has a maximum decrease degree of 3.02%.

Applications for similar designs were mainly filed by Chinese applicants, applications filed by foreigners slightly decreased:

Since the revised Patent Law took into force, more and more applications for similar designs have been filed. Among the recorded applications for similar designs filed from October 2009 to September 2010, the first applicants of 2,498 applications were Chinese, taking 62.43% of the total applications, wherein Guangdong, Zhejiang and Shanghai ranked the top three provisions filing the most applications; 1,503 applications were filed by foreigners, taking 37.57% of the total applications, wherein most applications came from the European Union, the United States, and Japan.

“As stipulated by the second paragraph of Article 31 of the revised Chinese Patent Law, ‘two or more similar designs for the same product may be filed as one application.’ This provision has certain influence on the application manner,” said by Lin. After the revised Patent Law took into force, Chinese applicants have been acquainted with the new law deeper and deeper. Along with this, the ratio of applications for similar designs filed by Chinese applicants kept increasing. As a result, the ratio of applications for similar designs filed by foreigners relative to the total applications for similar designs in the same period decreased. Nevertheless, the top five countries having the most applications still were China, Japan, the US, Germany, and France in order.

LIN Xiaoyue further explained that although the ratio of applications for similar designs filed by foreigners relative to the total applications of the same type slightly decreased, this type of applications took a high ratio relative to the total applications filed by foreigners because the total amount of applications for similar designs filed in China was small. On the contrary, because of the large base of the total applications filed by Chinese, applications for similar designs took a relatively small ratio. These changes sufficiently show that foreign applicants are also making use of the aforesaid provision.

Moreover, among applications relating to similar designs, applications of 55.04% included two designs, and each application included 3.21 designs on average. The number of drawings of an application for similar designs was 3.89 times that of an ordinary application. Besides, applications for designs in the following three classes: packages and containers for goods conveyance or loading and unloading, illuminating equipments, and ventilating and air-conditioning apparatuses, had the top three largest numbers, while the top three most foreign applications related to designs of goods in the following fields: communication apparatuses, mechanical products, and packages and containers for goods conveyance or loading and unloading.

 
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