The amended Chinese Patent Law has been implemented since June 1, 2021, but the relevant Implementation Rules of the Patent Law and Guidelines of Patent Examination are still in the process of revision. To ensure the implementation of the amended patent law, CNIPA has formulated some interim measures, so that patent applicants and other relevant personnel can handle related businesses. The design-related part of the Patent Law has been greatly amended, so how is it implemented at present? Please see the introduction below.
1. How to calculate the protection period of design patent?
The protection period design patent in Article 42 of the Patent Law is amended as follows: “The duration of patent right for designs shall be fifteen years, counted from the date of filing.”
According to the latest interim measures, the protection period for design patent whose filing date is before May 31, 2021 (including that date) is ten years, counting from the filing date. The protection period for design patent whose application date is June 1, 2021 and later is fifteen years, counting from the filing date.
If the design application with the filing date before June 1, 2021 also wants to enjoy the 15-year protection period, you can use the domestic priority system to re-submit the application (with a six-month period) to obtain filing date which is later than June 1, 2021. However, please note that if the previous application has already claimed priority or has been granted, the above operations cannot be performed.
2. How to prepare for submission of partial design patent application?
The definition of design in Article 2, paragraph 4 of the Patent Law is amended as follows: “Design means any new design of the shape, the pattern, or their combination, or the combination of the color with shape or pattern, of the whole or a part of a product, which creates an aesthetic feeling and is fit for industrial application.” Wherein the word "the whole or a part" specifies the protection system for partial designs.
According to the proposed amendments to the Implementation Rules of the Patent Law issued in November 2020, "If you file a partial design patent, you should submit the views of the overall product, and use a combination of dashed and solid lines or other means to indicate the content that needs to be protected." "If you file a partial design patent, if necessary, you need to specify the part of the request for protection in the brief description.”
Therefore, the drawings of the partial design patent can be prepared as follows:
1) Adopting the combination of dashed and solid lines. The solid line draws the protected part, and the dashed line draws the unprotected part.
2) Adopting the translucent coating method. The uncovered part is the protected part, and the covered part is the unprotected part.
You need to indicate that the design to be protected is a partial design in the design request form, you shall also specify the part of the request for protection in the brief description.
In addition, CNIPA will examine partial design patent application after the implementation of the newly amended Implementation Rules of the Patent Law.