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Eligible subject matter and term of protection of the design patent in China
Baoyu ZHANG
Chinese Patent Attorney
Article II, paragraph 4 of the current 2021 version of the Chinese Patent Law provides that "Design" means, with respect to an overall or partial product, any new design of the shape, the pattern, or their combination, or the combination of the color with shape or pattern, which is rich in an aesthetic appeal and is fit for industrial application.
The subject matter of a Chinese design patent must meet the following three requirements.
1. The design must be in the form of a product.
2. Shape, pattern, and color are the three elements of a design. What constitutes a design is the product's design elements or their combination, i.e., shape, pattern, or combination thereof, and combination of color and shape and pattern, for a total of six combinations.
3. A new design that is rich in an aesthetic appeal and is fit for industrial application
(1) ”New design”, is a general requirement.
(2) ”Rich in an aesthetic appeal”, is a visual sensation, the main requirement is decorative.
(3) ”Fit for industrial application”, is required to be applied to the product and can be mass-produced.
（1）The design of fixed buildings and bridges that depend on specific geographical conditions and cannot be reproduced repeatedly. For example, a mountain villa incorporating mountain scenery.
（2）Products that do not have a fixed shape, pattern, or color because they contain substances that do not have a fixed shape, such as gases, liquids, or powders.
（3）A product consisting of a number of components with different specific shapes or patterns, if the components themselves cannot be sold and used separately, the components will not be eligible for design protection. For example, a set of jigsaw puzzles consisting of different-shaped connectors will not be protected by a Chinese design patent unless all the connectors are filed together as a single design application.
（4）Items that cannot be used visually or are difficult to identify with the naked eye and require the use of special tools to distinguish their shapes, patterns, and colors. For example, products whose patterns can only be seen under ultraviolet light.
（5）The original shape, pattern, and color of natural objects as the main body of the design. This usually refers to two situations, one is the natural object itself, and the other is the natural object simulation design.
（6）Works that are purely in the realms of fine art, calligraphy, and photography.
（7）Designs consisting solely of geometric shapes and patterns which are commonplace in the sector to which the products belong.
（8）The sound and meaning of words and numerals.
（9）Game interfaces and graphics displayed on display devices that are not related to human-computer interaction. Examples include electronic screen wallpapers, switching screens, and graphic layouts for web pages that are not related to human-computer interaction.
（10）A partial design that does not form a relatively separate area or a relatively complete design unit on the product. Examples of such designs are a twisted line in the handle of a water glass, an irregular part of an arbitrarily cut-off lens of a spectacle, or an irregular part of a lens of an eyeglass.
（11）The only partial designs for which patent protection is claimed are designs of the surface of a product or a combination of patterns and colors. For example, the pattern on the surface of a motorcycle.
The current Patent Act introduces a partial design system and also extends the term of protection so that a design patent with a filing date on or after 1 June 2021 will enjoy a term of protection of 15 years from the filing date, while applications with a filing date prior to 1 June 2021 will continue to enjoy a term of protection of 10 years.
The China National Intellectual Property Administration (CNIPA) adopts a preliminary examination system for design patent applications.
The examination will cover the form of the application documents and any obvious substantive defects, the form of other documents and related formalities, and the relevant fees.
In addition, if two or more applicants apply for a patent for the same design, the first to file will be granted the design patent. This is known as the "first to file" principle.
