Foreign design system

The design system of the People's Republic of China

1. Subject of protection and duration

(1) Protection Law

Designs are protected by the Patent Law (Chinese: 聚利法) as design patent rights.

(2) Subject of protection

The scope of protection is almost the same as in Japan. Image designs have been able to be registered since May 2014, and partial designs have been able to be registered since June 5.

Designs created by the design, color or combination of two-dimensional printed matter and having a primary function as a sign are not protected.

  • <Patent Act> Article 2, Paragraph 4 (Amended Act)
    A design refers to a new design that is made with respect to the shape, pattern or combination thereof of the whole or part of a product, and the combination of color, shape or pattern, and that has a superior appearance and is suitable for industrial application.

◇Product designs related to GUI
The revised Patent Examination Guidelines, which came into effect on November 2019, 11, clarify that a design including a GUI may use the term "display screen panel" in its title. In that case, the design drawings must include at least one orthographic drawing of the GUI display screen panel.
In this case, the "brief explanation" must comprehensively list the products to which the display screen panel is applied. (The description "mobile terminal, etc." is not permitted.) Therefore, the following description is required.

Name of item: Display screen panel with XX operation GUI
Brief Description: The display screen panel is applied to mobile phones, computers

(3) Term of existence

The protection is for 15 years from the filing date.

*Applications filed by May 2021, 5 will be valid for 31 years from the filing date.

(4) Number of applications

The number of applications is very large.

According to statistical data released by the State Intellectual Property Administration of China, the number of design applications filed in 2021 was 80.5, the number of design applications filed in 2020 was 77, and the number of applications filed in 2019 was 71.2, showing an upward trend.

2. No screening policy

There is only a formality examination and no substantive examination, but the examiner will examine whether the design application clearly meets the novelty requirements.

Submitted drawings are checked rigorously, and correction orders are often issued due to discrepancies in the drawings.

3. Exceptions to lack of novelty

It is permitted if it is filed within 6 months prior to the filing date, but the applicable conditions are very strict, and unlike in Japan, it does not include exhibiting at an exhibition or publishing in a magazine. Therefore, it is necessary to file a design application in Japan before it loses novelty, and then file a Chinese application with a priority claim.

*Applicable condition
1. The information is made public for the first time in the public interest due to a national emergency or special situation.
② Items exhibited for the first time at an international exhibition hosted or approved by the Chinese government
3) First presented at a designated academic or technical conference
④ Unwanted public disclosure

4. Similar Design System

In principle, one design can be included in one application, but up to 10 similar designs of the same product can be included in one application. This is limited to simultaneous applications, and similar designs cannot be added after the application is filed.

Although China has a no-examination system, when clearly dissimilar designs are included in one application, division is required. However, even if similar designs are registered and then found to be dissimilar, this does not constitute a reason for invalidation.

5. Partial Design

Previously, China did not have a partial design system, but with the fourth amendment to the Patent Act, which will come into effect on June 2021, 6, a partial design system has been introduced.

【important point】
For partial designs in China, the "name of the design" must include the name of the entire article (product) and the name of the part for which registration is sought.
It is important to note that in Japanese design applications, only the name of the entire article is required.
For example, if the name of the part you are seeking to register can be identified, you can write it as "car door," "cup handle," "bicycle saddle," etc.
If the part for which you are seeking design registration occupies the entire product and you are disclaiming only a part of it, you should state "the subject of XX (the name of the entire product)." If there are any deficiencies in this statement, an order to amend will be issued.
In addition, the drawings for a partial design application in China must show the entire article and express the content sought to be protected using a combination of solid and dashed lines or other methods (including adding colors).
The brief description should include the use of the product as a whole and its parts.

6. Divisional Applications

A divisional application may be filed voluntarily or upon request of the State Intellectual Property Office.

(1) Filing date: The filing date will be the same as the original application.
(2) Applicant: The applicant must be the same as the applicant of the original application at the time of filing the divisional application.
(3) Creator: The creator must be the same as or a part of the creator of the original application.
(4) Fees: The same as for a new application.

7. Design Application Process

8. Required documents

① Application form
② Drawings or photographs
③ Brief explanation
④ Power of attorney
⑤ Priority certificate (if priority is claimed)

(1) Brief description

The "brief description" must concisely describe the features and uses of your creation. The "brief description" cannot contain commercial advertising terms, and cannot describe the performance or internal structure of the item. If you include content that should not be included in the "brief description," such as the performance of the item, you will be issued a notice to delete such content.

1) Details
① Name of the design article
This must match the product name on the application form.

② Use of the design article
In the case of an item that has multiple uses, state the multiple uses of the item in question.

② Use of the design article
In the case of an item that has multiple uses, state the multiple uses of the item in question.

③Key points for creating a design
Example: "The overall shape of the product as seen from the front is distinctive."

④ A drawing or photograph that best expresses the main points of the creation
Describe the representative drawing that best shows the main points of the creation (usually a perspective view).

⑤ Others
Explanation of cases where drawings are omitted or where color protection is sought
In the case of multiple similar design applications, the basic design is designated.

2) Important points to note

The scope of protection of a design right is based on the design of the article shown in the drawing or photograph, and the "brief description" can be used to interpret the design of the article shown in the drawing or photograph, which affects the scope of the right. In practice, it is considered sufficient to describe it concisely in order to broaden the scope of the right.

(2) Drawings or photographs

If you submit only six-sided drawings using the perspective projection method, you may be asked to submit a perspective drawing, so it is a good idea to submit a perspective drawing at the time of application. Compared to Japan, there are stricter requirements for consistency between each drawing, and perspective drawings are no exception, so they must be created accurately.

Photos and computer graphics can also be submitted.

9. Evaluation Report

Since designs are registered without examination, the design owner or interested party may request the China Patent Office to prepare a design evaluation report (patent evaluation report) to verify the validity of the right.

Previously, claims could only be made by rights holders such as design rights holders or licensees, but the revised Patent Act that came into effect on June 2021, 6 now allows claims to be made by suspected infringers as well.

10. Appeals against Decision of Refusal

(1) Claimant

Only the applicant may file an appeal against a decision of refusal.

(2) Period for filing an appeal

The claim must be filed within three months from the date of receipt of the refusal.

(3) Required documents

①Appeal request
② Relevant evidence (if necessary)
③Amended design application documents (two copies per set) (※)
* When requesting an appeal or replying to a Notice of Appeal from the Patent Reexamination Board, the petitioner may amend the design application documents, provided that the amendment is limited to removing the defects pointed out in the Decision of Refusal or Notice of Appeal.

(4) Withdrawal of arbitration

Before the Patent Reexamination Board makes a decision, the appellant may withdraw the appeal.

In that case, the arbitration proceedings will be terminated.

(5) If you are dissatisfied with the decision

If the applicant is dissatisfied with the decision of the Patent Reexamination Board, he/she may file a lawsuit in the Beijing Intellectual Property Court against the Patent Reexamination Board as the defendant within three months from the date of receiving the decision.

11. Invalidation Trials

(1) Claimant

Anyone may request an invalidation trial.

Overseas applicants must appoint a foreign affairs agency designated by the State Intellectual Property Office.

(2) Required documents

① Request for invalidation trial (two copies)

② Required evidence (two copies)

(3) Main reasons for invalidation

① Those that do not fall under the category of design. (Article 2 of the Patent Law)

② The applicant is not the first applicant or is subject to overlapping rights, does not have novelty, or conflicts with a lawful right previously obtained by another person (Article 23 of the Patent Law).

33) The amendment goes beyond the scope of the original drawing or photograph (Article XNUMX of the Patent Law).

5. Violates national laws or social morals, or harms the public interest. (Article XNUMX of the Patent Act)

25) It falls within the scope for which design rights are not granted. (Patent Law, Article XNUMX)

(4) Withdrawal of arbitration

Before the Patent Reexamination Board makes a decision, the appellant may withdraw the appeal.

If the requester of invalidation withdraws the request or the request for invalidation is deemed to be withdrawn before the Patent Reexamination Board makes a decision, the examination procedure for the request for invalidation shall be terminated. However, if the Patent Reexamination Board believes that it can make a decision to invalidate or partially invalidate the design patent in the examination it has already conducted, the examination procedure shall not be terminated.

(5) If you are dissatisfied with the decision

If a party is dissatisfied with the decision of the Patent Reexamination Board, it may institute a lawsuit against the Patent Reexamination Board as the defendant at the Beijing Intellectual Property Court within three months from the date of receiving the decision, and the Beijing Intellectual Property Court will notify the other party in the invalidation trial to join the lawsuit as a third party.

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