The preliminary examination on a Chinese design patent application has become increasingly stricter, and recently some design patent applications have been rejected because they are not in conformity with the requirements of Article 2.4 of the Chinese Patent Law. 

    What is the meaning of Article 2.4?

    Article 2.4 of the Chinese Patent Law states that the term "design" refers to a new design of a product's shape, pattern or the combination thereof, or the combination of its color and shape and/or pattern that is aesthetically pleasing and industrially applicable. 

    Article 2.4 is the general definition of a design which may obtain patent protection.  It is not the specific examination standard for determining whether designs are identical or substantive identical. As a result, during the preliminary examination, the examiner normally determines whether the claimed design meets the general requirements of a "new design" only on the basis of the contents of the application documents and the common sense of normal consumers.

    How to traverse rejection of Article 2.4？

    1.      Stating the essential features in the Brief Description

    The essential features refer to the shape, pattern or their combination, or the combination of the color with the shape or pattern, or the position, which is different from the prior design.

    When filing a Chinese design application, the applicant may clearly state the essential features and their locations in the drawings as filed, so as to make it easier for the examiner to directly notice the new features or new things, thus distinguishing the design concerned from conventional designs.

    2.      Listing the essential features in the response to the Office Action

    If the essential features are not stated in the Brief Description when filing, the applicant may list them in the response to the Office Action and state the influence of these features on the overall visual effect.

    3.      Collecting prior designs

    The applicant may conduct a simple search for prior designs during the preparation of the response or even before the filing of the application. Based on the retrieved prior designs, the applicant may explain, in the response, the situation of the conventional designs and their features, and compare and list the differences between the design as filed and conventional designs.

    4.      Objectively analyzing the knowledge and cognitive ability of a normal consumer

    According to the Guidelines for Examination, the examination of whether a design patent is in conformity with Article 2.4 shall be made according to the knowledge and cognitive ability of a normal consumer of the product incorporating the patent concerned.

    In the response, the applicant may objectively analyze the design parts or features which are more easily noticed by a normal consumer in consideration of the usage, the using environment or even the design freedom of the product incorporating this kind of design, and state the new influence on the overall visual effect which is brought about by the design concerned.