Coming soon: new design law for China

In around three weeks, on 1 October 2009, the 2008 Third Revision of China's patent law comes into force according to the first in a series of articles written for Intellectual Property Watch by SIPO researcher Wenting Cheng.

Ms Wenting explains that China has an omnibus patent system which incorporates protection of designs and utility models as well as conventional patents. As to patentability of designs she writes:

" ... Patent Law (2008) Article 23 adds a new section, providing that the design on which a patent may be granted must be substantially different from any prior designs or a combination of the features of prior designs. Any design on which a patent may be granted must not be in conflict with any prior legitimate rights of any other person. The prior design referred to in this law means any design known to the public before the filing date of the patent application in China or abroad.

This newly added provision defines two standards to determine the patentability of a design: one is substantial difference and the other is that it is not in conflict with prior rights. Details on these standards are included in the Implementing Regulations of Patent Law and Guidelines for Examination which undergo revisions accordingly. Specifically, major changes take place in the post-grant stage since there is no substantive examination in granting design patents in China".

For further details, including how to tell whether two designs are identical, you can read the full article here.