Recently, our firm won the second instance of an administrative lawsuit on invalidation declaration of a patent for invention, successfully having the patent fully invalidated by th...
Recently, our firm won the first instance of an administrative litigation case for invalidation of an invention patent, in which it is ruled that the invention patent should be comp...
Two Application Routes for Obtaining Design Patents in China and Their Advantages and Disadvantages
Baoyu ZHANG
Chinese Patent Attorney
The Hague Agreement Concerning the International Registration of Industrial Designs (Geneva Act, hereinafter referred to as the Hague Agreement) came into force in China on 5 May 2022. This offers a new way to obtain design patent protection in China.
This article mainly introduces the main routes for applicants to file design patent applications in China, as well as the advantages and disadvantages of each, hoping to be helpful to applicants seeking design patents in China.
1. Eligibility of applicants for both application routes
1.1 Direct filing of Chinese design patent applications with the China National Intellectual Property Administration (CNIPA)
Article 17 of the Patent Law of China provides that where any foreigner, foreign enterprise or other foreign organization without a habitual residence or business office in China files a patent application in China, the application shall be handled under this Law in accordance with the agreements concluded between the country to which the applicant belongs and China, or in accordance with the international treaties to which both the countries are parties, or in accordance with this Law on the basis of the principle of reciprocity.
Therefore, foreigners, foreign enterprises, or other foreign organizations that do not have their usual residence or place of business in Mainland China may file applications with the CNIPA under the above provisions. If there is a foreign priority, it can be claimed for the application.
1.2 Filing international design applications (the Hague Agreement)
According to Article 3 of the Hague Agreement, nationals of contracting States and persons who, without being nationals of any contracting State, are domiciled or have a real and effective industrial or commercial establishment in the territory of a contracting State may deposit designs at the International Bureau.
Accordingly, an applicant who fulfills the above conditions may file an international design application with an IP office, which is not limited to the CNIPA, and designate China.
2. Comparison of specific advantages and disadvantages:
A basic international application fee and
a publication fee are required. For some countries that require a separate
designation fee, an additional fee is required. A separate designation fee is
required for entry into China.
