4.8.1 Main features of design patents
Although design, invention and utility model patents are stipulated in the Patent Law as possessing common characteristics, the design patent has several unique characteristics. First, a design patent protects “a new design, which creates an aesthetic appeal and is fit for industrial application.” This differs from the “technical solution” protected by invention and utility model patents. Consequently, there are differences between design patents and invention and utility model patents in terms of the subject of evaluation, grant and confirmation criteria, protection scope, infringement judgment, acts of infringement, terms of protection and so on. Second, a design cannot exist alone without the corresponding product. The category of this product also has an important impact on the determination of protection scope, the grant and confirmation of design patents and determinations of infringement. Third, a design protected in accordance with the Patent Law includes both the overall and partial design of the product.
Provisions regarding partial designs were added to the fourth amendment of the Patent Law in 2020. All cases described in the following sections were decided before this amendment – thus, they concern only the overall designs of products. Fourth, the elements of a design include shapes, patterns or the combination thereof, as well as the combination of colors, shapes and patterns. Colors cannot be protected by design alone. Fifth, design patents are not subject to a substantive examination but only to a preliminary examination before they are granted. Finally, in addition to the Patent Law, product designs can also be protected like other types of intellectual property rights in accordance with the Copyright Law,166 the Law on Anti-unfair Competition,167 and other relevant laws and regulations.