Baoyu ZHANG
Chinese Patent Attorney

There are three types of patent in China: invention, utility model, and design patent. Design patents are favored by some applicants because of their short grant period and the fact that they protect the easily observable appearance of the product, which makes it easier to determine infringement than inventions and utility models, among other advantages.

The procedure and important timeframes for filing a design patent application are described below.

The flow chart for filing a design patent application is shown below.

1. The main stages in filing a design patent application

1.1 Preparation and Filing of Application Documents

An application for a design patent must be filed with a request form, drawings or photographs, and a brief description. The applicant must provide information about the applicant and the designer, and prepare views and a description of the relevant product use and the contributing design features.

If priority has been requested, it is necessary to prepare a copy of the priority or apply for a DAS code (applicable when the receiving office of the prior application joins the priority document digital access service).

After filing the application documents, the application fee must be paid to the CNIPA within two months from the filing date. If the application documents contain defects, the applicant may submit initial amendments within two months from the filing date.

1.2 Preliminary examination

After the application has been accepted, it is classified by the classification examiner and then examined by the preliminary examiner. If no grounds for refusal are found in the examination of the design application, the examiner will issue a notice of grant of the design right. If there are defects in the application documents, the examiner will issue a notice of correction or an office action.

Upon receipt of the notice of correction or office action, the applicant should respond with arguments and/or amendments within 2 months. If the applicant has reasonable grounds for difficulty in responding within the time limit, the applicant may request an extension of the time limit.

If the applicant can overcome the defects in the notice through his response, the examiner will issue a notice granting the design patent right. If the defects still cannot be overcome, the examiner may issue another notice or make a decision of rejection depending on the circumstances.

1.3 Registration and Publication

The applicant should complete the formalities and pay the annual fee within 2 months from the date of receipt of the patent grant notification. The CNIPA will then issue the patent certificate, register the patent, and publish it simultaneously.

1.4. Re-examination and court action (possible)

If a patent application is rejected for non-compliance with patent laws and regulations, and the applicant disagrees with the rejection, they may file a request for reexamination with the Patent Reexamination and Invalidation Department (PRID) of the CNIPA within three months from the date of receipt of the rejection decision.

The PRID will first conduct an interlocutory examination, and may, depending on the circumstances, proceed with a reexamination, which is carried out by a panel of three examiners. If the applicant is still dissatisfied with the reexamination decision, they may appeal to the Beijing IP Court within three months from the date of receipt of the reexamination decision.

2. Important Time Limits for Design Patent Applications

2.1. Priority period: 6 months from the date of the first application.

2.2. Deadline for payment of filing fee: 2 months from the filing date.

2.3. Deadline for initial amendment: 2 months from the filing date.

2.4. Deadline for submitting a copy of the priority or DAS code, or documents proving the transfer of the priority: 3 months from the date of the subsequent application.

2.5. Deadline for responding to the notice of correction or office action: 2 months from the date of receipt of the notice, which may be extended twice, once for 1 month or 2 months.

2.6 Deadline for divisional application: The applicant must file a divisional application no later than two months from the date of receipt of the patent grant notification from the Patent Office (i.e., the deadline for registration procedures for the original application).

2.7 Deadline for voluntary withdrawal: The application may be withdrawn at any time before the grant. After the grant, if registration has been completed, withdrawal must occur before the application is ready for publication; otherwise, it will be published as usual.

2.8 Deadline for changing the inventor: Within 1 month from the date of application.

2.9 Time limit for applying for the grace period (exception for loss of novelty): Within six months before the filing date (or the priority date, if entitled to priority).

2.10 Time limit for registration procedures: Two months from the receipt date of the notification granting the design patent right.

2.11 Time limit for filing a request for reexamination: 3 months from the receipt date of the rejection decision.

2.12 Time limit for responding to the reexamination office action: 1 month from the receipt date of the reexamination office action.

2.13 Time limit for administrative litigation: 3 months from the receipt date of the reexamination decision.

2.14 Deadline for payment of annual fees: The annual fee for the year of the grant of the patent must be paid at the same time as the registration procedures. Subsequent annual fees must be paid before the expiration of the previous year (the deadline for payment is the corresponding day of the application date in the relevant year). The fee can be paid late within six months from the due date. If the payment is made more than one month after the deadline, a late fee, in addition to the annual fee, must be paid.

The above content is intended to serve as a reference for design patent applicants at the earliest opportunity.