Amendments to Chinese Implementing Regulations related to design application
The State Council of the People’s Republic of China published “the Decision of the State Council to Amend the Implementing Regulations of the Patent Law of the People’s Republic of China”, and the revised Implementing Regulations of the Patent Law entered into effect on February 1, 2010. In accordance with this, the State Intellectual Property Office published “transitional regulations on implementation of the revised Implementing Regulations”.Based on the revised Patent Law, the revised Implementing Regulations provide more detailed provisions mainly on the following matters in the field of design applications.
(1) Items to be included in brief explanation in design application (revised Implementing Regulations, Rule 28)
According to the revised Patent Law, Article 27, a brief explanation of a design shall be included in a design application, and the brief explanation is used as a reference when determining the scope of protection on the design. The revised Implementing Regulations further stipulate as follows.
(i) The brief explanation shall include the name and use of the product, and essential portion of the design, and the applicant shall indicate one of the drawings or photographs best showing the essential portion of the design. Where perspective drawings are omitted or protection is sought for colors, the applicant shall make relevant descriptions in the brief explanation.
(ii) Where one application for a design patent is filed for multiple similar designs of one product, the applicant shall designate one of the designs as the basic design.
(iii) The brief explanation shall not contain any commercial advertising and shall not be used to indicate the function of the product.
(2) Related design system (revised Implementing Regulations, Rule 35)Although one design application shall include only one design as a rule, there is stipulated an exception in which two or more similar designs related to the same product may be submitted in one design application.
(i) Multiple designs of the same product similar to one another in one design application shall be similar to the basic design of the product.
(ii) Multiple designs shall not exceed a maximum of 10 designs.
(3) Priority of design ((revised Implementing Regulations, Rule 31)
Where the applicant of a design patent application claims the priority of a basic application filed in a foreign country, and the basic application does not include a brief explanation of the design, if the brief explanation submitted in accordance with the provisions of Rule 28 of this Implementing Regulations does not go beyond the scope of the disclosure as shown in the drawings or photographs of the basic application, this circumstance will not affect the applicant from enjoying the right of priority.
(4) Design assessment report
Where any infringement dispute relates to a patent for utility model or design, the people's court or the administrative authority for patent affairs may ask the patentee or the interested party to submit a patent assessment report, which is made by the Patent Administration Department under the State Council. The patent assessment report is used as an evidence for proceeding and handling the patent infringement dispute. (revised Patent Law, Article 61)
(i) Eligible person for request (revised Implementing Regulations, Rule 56(i))The patentee or the interested party may request the Patent Administration Department under the State Council to make a patent assessment report.
(ii) Number of requests (revised Implementing Regulations, Rule 57)Where there are multiple requests for the patent assessment report by requesting persons, the Patent Administration Department under the State Council shall make only one patent assessment report.
(iii) Time to request (revised Implementing Regulations, Rule 56(i))The patentee or the interested party may request after publication of decision to grant a design patent.
(iv) Publication (revised Implementing Regulations, Article 57)Any entity or individual may consult or copy the patent assessment report.
OSAKA
