1. What is a design?

Design means any new design of the shape, the pattern, or their combination, or the combination of the color with shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application.

2. Can I protect a GUI or an animated image as a design?

Yes, a GUI or an animated image will be protected with product in China from May 1st 2014. Design drawings or photographs shall display both the design of GUI or animated images and the design of products.

The GUI or animated image to be protected shall not be game images, or irrelevant to human-computer interaction or enforcing function of products, such as electronic wallpaper, images displayed in Power ON-OFF process and graph-text layout on website pages.

3. Who can apply?

Any Chinese people or enterprises, and those foreign people who have fixed residences or business sites, or foreign enterprises or organizations located in China, enjoy same the privilege of Chinese people in the respect of patent right protection, i.e. they have the rights either to apply for patents as same as Chinese people do, or to enjoy protection from the Chinese Patent Law.

Any foreigner, foreign enterprise or other foreign organization having no fixed residence or business site in China files an application for a patent in China, the application shall be treated under this Patent Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are member countries, or on the basis of the principle of reciprocity.

4. What are the main steps of the registration process?

The main steps of the registration process include classification, examination, authorization or rejection, publication after authorization.

5. What is the average time to get a design registered in China?

In 2013, the average examination period for design application is within 3.8 months as counted from the date of filing.

6. How and where to apply? Do I need a representative?

An applicant seeking patent protection for designs shall file an application for patent with the Patent Office.

The formalities of a design application shall be gone through in either written (on paper) or electronic form.

Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in mainland China applies for a patent, or has other patent matters to attend to, in China, or the applicant, as the first named applicant in a patent application jointly with an applicant from mainland China, applies for a patent and has other patent matters to attend to, he or it shall appoint a patent agency to act as his or its agent.

7. What are the requirements for registering a design?

Any design for which patent right may be granted shall neither belong to the prior design, nor has any entity or person filed before the date of filing with the Patent Administrative Department Under the State Council an application which described the identical design and was announced in patent document after the date of filing.

Any design for which patent right may be granted shall be obviously differentiable from the prior design or a combination of features of the prior design.

Any design for which patent right may be granted must not be in conflict with any legitimate right gained prior to the date of filing by any other person.

The prior design referred to in this Law means any design known to the public in this country or abroad before the date of filing.

8. What kind of documents do I need to provide with my application? Do I need to file them in Chinese?

For applying for a patent for design, a request, drawings or photographs of the design as well as a brief explanation of the design, etc. shall be submitted.

Yes. Any document submitted under the Chinese Patent Law and its Implementing Regulations must be in Chinese.

9. Can I claim priority rights? When?

Yes, applicant shall claim priority rights when the application is filed.

10. What are the requirements and the documentation (type, format) to be provided for when claiming priority?

Any applicant who claims the right of priority shall make a written declaration when the application is filed, and submit, within three months, a copy of the patent application document which is first filed.

11. Will the novelty of the design application be checked “ex officio” (vs/ prior art) during the registration procedure?

Yes.

12. Is there a minimum/maximum number of views and size of the pictures of my design?

No. the relevant drawing or photographs submitted by applicant shall clearly indicate the design of the product for which patent protection is sought.

13. Are there specific requirements as to the format of the views to be submitted in the design application (in particular when electronic filing is used)

No. When electronic filing is used, the format of the views should be JPG or TIF.

14. How much are the fees for registering a design?

Application fees: ￥500;

Publication fees: ￥205;

Annual fees:

1-3 years: ￥600 per year

4-5 years: ￥900 per year

6-8 years: ￥1200 per year

9-10 years: ￥2000 per year

15. How long is the registered design valid? Can I renew my registered design? For how long? Under which conditions (Do I have to pay fees)?

The duration of patent right for designs shall be ten years, counted from the date of filing. The period can not be renewed.

16. In which kind of agreements and conventions related to designs is China part of?

Paris Convention on the Protection of Industrial Property, and Locarno Agreement on Establishing an International Classification for Industrial Design

17. My application was rejected by the Patent Review Board, what can I do?

When the applicant for patent is not satisfied with the decision of the Patent Re-examination Board, he or it may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court.

18. Is there an invalidation process for designs? How is the procedure?

Yes. Beginning from the date the patent administration department under the State Council announces the grant of a patent right, if a entity or individual believes that such grant does not conform to the relevant provisions of this Law, it or he may request that the patent reexamination board to declare the said patent right invalid.

Anyone requesting invalidation or part invalidation of a patent right shall submit a request and the necessary evidence in two copies. The request for invalidation shall state the grounds for filing the request in detail, making reference to all the evidence as submitted, and indicate the piece of evidence on which each ground is based.

19. Which are the prior IP Rights that may justify the invalidation of my design (e.g.: prior registered design, prior unregistered design, trade mark, patent, utility model, copyright, etc.)

According to Article 23.3, designs for which a patent right is granted shall be ones which are not in conflict with the lawful rights acquired by others prior to the date of application. Therefore, trademark, copyright and other prior IP Rights may justify the invalidation of design.

Meanwhile, the patent, utility model and other prior IP Rights which discloses the design may be used in the invalidation of the design as a prior art.

20. How can I enforce the rights of a registered design?

After the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, offer to sell, sell or import the product incorporating its or his patented design, for production or business purposes.

If a dispute arises as a result of exploitation of a design patent without permission of the patentee, that is, the patent right of the patentee is infringed, the dispute shall be settled through consultation between the parties. If the parties are not willing to consult or if consultation fails, the patentee or interested party may take legal action before a people's court, and may also request the administration department for patent-related work to handle the dispute.

2014-03-31