Since the fourth amendment to the Patent Law came into effect in June 2021, after two and a half years, the following regulations have been implemented:
- The revised “Implementing Rules of China’s Patent Law”, and
- Revised Patent Examination Guidelines
It has been updated and released at the end of 2023 and will take effect on January 20, 2024. We summarize the key points of the above-mentioned amendments (the 2024 Amendments) and their impact on practice and business.
Requirements for partial design patents
Partial designs can apply for patents starting from June 2021. The 2024 amendment further stipulates the requirements for partial design registration applications:
- A view of the overall product should be submitted.
- For line drawings, the parts for which protection is claimed shall be represented by solid lines, and the dashed lines shall represent the parts for which protection is not claimed.
- For renderings/photos, non-claimed parts should be covered with a translucent contrasting color.
- If the claimed part contains a three-dimensional shape, the submitted views should include a three-dimensional view that clearly shows the part.
- If a dotted line is used to indicate the dividing line between the claimed part and other parts, this should be stated in the brief description if necessary.
- The claimed parts should be stated in the brief description, but line drawings are not used because they already represent the claimed parts with solid lines.
- The name of a partial design should refer to the specific part to be protected and not to the product as a whole.
- When necessary, the purpose of the partial design should be stated in a brief description.
- The designated pictures or photos that best illustrate the key points of the design should contain the partial design claimed.
- The partial appearance design should form a relatively independent area on the product or constitute a relatively complete design unit.
International design application
China will join the Hague System in May 2022, and the China State Intellectual Property Office is the acceptance agency for international design applications. The 2024 amendments detail the regulations regarding international applications for designs.
Absolute obviousness
The examiner will have the discretion to conduct an obviousness review on design patents filed on or after that day, which is a further requirement for design patent authorization after the introduction of obvious novelty review a few years ago. In the past, design patent authorization was mainly based on formal examination and obvious novelty examination. This indicates that the standards for granting design patents are becoming more stringent. The purpose of this change is to address the issue of bad-faith patent applications, which include a large number of design patents.
Delayed review
Chinese designers can submit a request to delay review, and the delay period can be selected from 1 to 36 months. Prior to the 2024 amendments, deferment periods could only be chosen from three options: 12 months, 24 months and 36 months. This option provides designers with greater flexibility to extend the pendency period of their design patents each month to meet their specific business requirements.
Priority
A design patent can claim priority for invention, utility model and design patents. Once the domestic priority of a design is filed, the earlier application will be deemed to have been withdrawn, but the priority of invention and utility model patents will not be affected. The priority period for any type of patent that is claimed as priority for a design patent is six months.
For further information, please contact:
Li Mi, Partner, Rouse
mli@lushenglawyers.com
