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China design patent, as one of the three categories of China Patent, protects the external design of the creator’s original work. The scope of a design patent in China is essentially the same as in the U.S., where protection is allowed for any new, original, ornamental design for an article of manufacture. China employs an absolute novelty standard, and includes no grace period, so prior use or publication anywhere in the world will render the design un-patentable.
General Rules of a China Design Patent
A design patent must not have been published overseas or in China, and must not have been used in China. In addition, a design patent cannot conflict with the prior rights of another person. The phrase ‘not have been used in China’ means that the product has not been publically used in China. As a general rule, if a company sells their products in China before filing for registration, this will destroy the ‘novelty’ of the patent.
An application for a design patent includes any of the following external features of a product:
• The shape of a product;
• The pattern of a product;
• The shape and pattern of a product;
• The shape and colour of a product;
• The shape, pattern and colour of a product.
Colour - Not Only One Factors
The colour of a product alone cannot constitute the design of a product unless the change of colour can be regarded as a pattern. Colour does not include the natural colour of the raw material of the product. It is recommended that a combination of the colour of the machine, together with either the shape and/or pattern, should be applied for, in order to prevent the patent being easily invalidated after it is granted patent rights.
Specifying Reasons for the Novelty
The applicant should as far as possible show why the external design is a 'new design'. The preliminary examiner will only consider whether the design is 'new' according to the application documents and the common sense of the average consumer. However, a correctly drafted external design patent application highlighting why the design is 'new', how it can be used by industry, and that it can be manufactured in batches, will prevent the patent being easily invalidated. If a particular feature has a practical application, rather than being used merely because it looks good, applying for an invention patent or utility model should be considered.
Priority for the Registered Patent
Once you have registered a design patent, no entity or individual can exploit your design. That means that they cannot make, offer to sell, or import a product that incorporates the patented design for production or business purposes.
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