i. Patent protection term and partial design

After the 4th amendment of China Patent Law, China has extend the design patent protection term from 10 years to 15 years, from the date of filling. In the US, the term is also 15 years, from the date of grant. Before the amendment, China only allow to use solid lines to protect the design as whole product. Now, as the same in the US, China start to allow partial design protection by using broken lines.

ii. Different examination system

Under Article 23 of China Patent Law, “the design for which the patent right could be granted should not belong to the existing design.” “Compared with the existing design or the combination of the existing design features, the design of the granted patent right should be obviously different.”

China implementing preliminary review system in design patent applications, normally only formal review, not substantive examination. According to Article 40, if the preliminary examination of the utility model and design patent application does not have the reason for rejection, the patent administration department of the State Council shall make a decision to grant the utility model patent or the design patent, and issue the corresponding patent certificate, and register and announce it at the same time.

In the US, under Title 35 of the United States Code, there are 3 types if creation that could be granted patent right, including utility patent, design patent and plant patent. Those who design a novel, original, and decorative appearance for a product can obtain a design patent.  Most of the provisions of U.S. law are made around utility patents. For design patents, unless the law provides otherwise, the provisions of utility patents generally apply.

Unlike China, the United States requires substantive examination when examining design patent applications. Only design patents that satisfy both decorativeness, novelty and non-obviousness can pass examination and be authorized. Thus, the reviewing time period are different.  Averagely, it will take 4-8 months from submitting the application to issuance in China for design patent, while it could take 1-3 years for examination period in the US.

Decorative

In the US, a patentable design must be a design for the product. The decorative nature of the design requires that the relevant design should have a certain sense of beauty, but it does not require the beauty and decoration presented by art or artwork. It should be noted that the design only protects the decorative features and not the technical features, that is, does not protect the technical functions of the product.

Novelty

Design patents in the US need to meet the conditions of novelty. If there is no one of the following circumstances, the applicant has the right to obtain a patent right: (a) Before the patent applicant completes the invention, the invention has been known or used by others in the country, or has been obtained in this country or a foreign country, or has been described in a printed publication; (b) The invention has been patented in the country or a foreign country, or has been described in a printed publication, or has been publicly used or sold in the country, before the date of applying for a patent in the United States has more than one year.

Non-obviousness

If the difference between the subject matter of the patent application and the prior art is so small that the subject matter of the patent application as a whole is obvious to those of ordinary skill in the art when it is completed, the application cannot be granted patent rights.

In conclusion, comparing the relevant regulations of China and the United States, it is not difficult to find that the granting conditions of Chinese designs are obviously looser than those of the United States around “novelty”.

iii. Patent annuities

In the United States, only invention patents are subject to maintenance fees. Once a design is granted, there is no need to pay any fees to maintain the validity of the patent during the validity period of the patent.

In China, the annuities of designs are RMB600(USD92.6) per year for the first to third years, RMB900(USD139) per year for the fourth to fifth years, RMB1200(USD185.3) per year for the sixth to eighth years, and RMB2000(USD308.9) per year for the ninth to tenth years.  The annuity after 10th year has yet to be determined.

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