Amendments related to design patent in third amendment to China’s Patent Law.
The amendment to China’s Patent Law was passed by the National People’s Congress on December 27, 2008, and will go into effect on October 1, 2009.
Major amendments related to design patent are described below.
(1)Definition of “Design” is clarified (Article 2(4))
“Design” means any new design of the shape, pattern, or their combination and the combination of color and shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application.
(2)Stricter registration requirements
(i) As to a regional standard for public knowledge and public use, the domestic standard is changed into to the world standard (Article 23(4))
Any design which is publicly known or publicly used not only in China but also abroad loses its novelty.
(ii) Restriction regarding conflicting applications is added so that the conflicting applications include applications filed by the same applicant (Article 23(1))
Patent right shall not be granted for a design if an application for a design identical with said design was filed by any individual or entity before the filing date of said design. Therefore, conflicting applications include applications filed by the same applicant.
(iii) “Substantial difference” is added to the registration requirements (Article 23(3))
Any design for which patent right may be granted shall be substantively different from (i) the prior design or (ii) a combination of the feature of the prior design.
(3) Design serving as a diagram or a sign is excluded from the objectives of the registration (Article 25)
No patent right shall be granted for designs mainly serving as a sign and made of the pattern, color or its combination of two-dimensional printed matter.
(4) Exceptions to the restriction that an application for a patent for design shall be limited to one design incorporated in one product (Article 31(2))
An application for a patent for design shall be limited to one design incorporated in one product. However, as exceptions, in the following two cases, two or more designs may be filed as one application.
(i) Two or more similar designs for the same product
(ii) Two or more designs which are incorporated in products belonging to the same class and are sold or used in sets (already in effect in the current law)
(5) Application documents
Application documents must include “a brief explanation of the design” (Article 27)
(6) “Exploit the patent” includes “offer to sell” (Article 11)
After the grant of the patent right for a design, unless otherwise provided in this Law, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, offer to sell, sell or import the product incorporating its or his patented design, for production or business purposes.
(7) A system of search report for designs is introduced (Article 61)
In a patent infringement dispute related to a patent for design, the patentee or the interested party may be required to submit a patent search report made by the Patent Administrative department Under the State Council to the people’s court or the patent administrative department (mainly in local districts). Only the patentee or the interested party can ask for the patent search report.
OSAKA
