On the Amendments in Design Patent in Patent Law of People’s Republic of China
date: 2021-03-15Xijiang Wang Wenhua Li Nannan ZhaoRead by:
The newly amended Patent Law of People’s Republic of China will be effective on June 1, 2021. There is a large part of amendments to the patent law concerns on design patent, including the following points:
1. Paragraph 4 of Article 2 is amended to read: “’Design’ means a new design of the overall or partial shape, pattern or a combination thereof, as well as the combination of the color, shape and pattern of a product, which creates an aesthetic feeling and is fit for industrial application.”
A statement of “overall or partial” is added into the terms, indicating that China wants to include partial design into the scope of design patent protection. Since it is not yet clear how to apply for partial design and how to describe figures, the author thinks that it may take the laws of the United States and Japan as references for the overall figure of the design in the specification, the pre-protected parts are outlined in solid lines and the rest parts are outlined in dotted lines. Using the abovementioned method, it will describe the use environment of partial design, and also identify the protection boundaries for partial design.
2. Paragraph 2 of Article 29 is amended to read: The applicant who files a patent application for the same subject matter with the patent administration under the State Council within twelve months from the date of the first invention or utility application for patent in China, or within six months from the date of the first design application for patent in China, will have a prior claim.
In the previous design patent applications, the applicants were unable to adjust the submitted application drawings or photographs while retaining the filing dates due to the lack of terms concern on the priority in China. If an applicant wanted to protect the partially adjusted product after it has been launched into the market, the applicant had to file a new patent application. Therefore, it is not convenient. With the additional priority for design patent, the applicant can adjust the description of figures of the drawing in the patent to denote the appearance of the launched product. It is convenient for the applicant to adjust the patent application promptly in line with the fast renewal of design nowadays.
3. Article 42 is amended to read: The valid term of an invention patent is twenty years, the valid term of a utility patent is ten years, and valid the term of a design patent is fifteen years, all are calculated from the date of application.
Extending the valid term of design patent to fifteen years makes little sense, because products upgrade fast. For example, for electronic products, a design of 5 years ago is outdated in the market, also has lost the value of protection. However, the contracting states in Hague Agreement require a minimum protection period of 15 years. The Hague Agreement is favorable for the applicants who file design patent applications abroad. The amendment thereof is a preparation for China to join the Hague Agreement.
Given all that, the amendments in design patent in the patent law have many highlights. We have to wait for the release of enforcement regulations and review guidelines for the specific details of the new content. Now the amendments of enforcement regulations of the patent law are put on the agenda, let us wait and see.