4.8.2 Grant and confirmation procedures for design patents
4.8.2.1 Grant procedures and administrative cases
The application for a design patent is not subject to a substantive examination but only to a preliminary examination before the patent is granted. A preliminary examination includes:
- a formal examination of application documents;
- an examination of obvious substantive defects in the application documents (Article 44 of the Rules for the Implementation of the Patent Law);
- a formal examination of other related documents; and
- an examination of related costs.
Where it is found, after the preliminary examination, that there is no reason to reject the application, the patent administration department of the State Council will decide whether to grant a design patent right. After the applicant has made, supplemented or rectified the statements of opinion, the patent administration department will consider whether the application for the design patent conforms with the Patent Law and the Rules for the Implementation of the Patent Law. If not, the application will be rejected.
If the applicant is not satisfied with the rejection decision, they may file a reexamination request with the CNIPA. If the applicant is still not satisfied with the reexamination decision, the applicant may bring an administrative lawsuit (i.e., an administrative case involving the grant of the design patent) to the Beijing Intellectual Property Court, according to law.
4.8.2.2 Invalidation declaration and confirmation procedures and administrative cases
According to Articles 45–46 of the Patent Law, any entity or individual can request the patent administration department of the State Council to declare a design patent right invalid. If the entity or individual is not satisfied with the decision of the patent administration department, they may bring a lawsuit to the people’s court within three months from the date of receiving the notice. The people’s court will notify the person who is the opponent party in the invalidation procedure to participate in the litigation as a third party.
Reasons for requesting invalidation of a design patent right include that the patent:
- does not conform with Article 2 of the Patent Law regarding the object of protection of the design patent;
- does not conform with Article 23 of the Patent Law, which provides that the design patent must not be part of a prior design or have a conflicting design, that it is significantly different from prior designs or the combination of prior design features, and that there is no conflict of rights;
- does not conform with Article 27 paragraph 2 of the Patent Law, which specifies that the relevant drawings or photographs submitted by the applicant must clearly indicate the design of the product for which patent protection is sought;
- does not conform with Article 33 of the Patent Law, which specifies that amendments to design patent application documents must not go beyond the scope of the disclosure as shown in the original drawings or photographs;
- does not conform with Article 43 paragraph 1 of the Rules for the Implementation of the Patent Law, which specifies that divisional applications must not go beyond the scope of the disclosure in the original application;
- falls within the scope of Article 5 of the Patent Law, which specifies that no patent right will be granted for any invention-creation that violates laws or social morality or that is detrimental to the public interests;
- falls within the scope of Article 25(6) of the Patent Law, which specifies that no patent right will be granted for “designs of two-dimensional printing goods, made of the pattern, the color or the combination of the two, which serve mainly as indicators”; and
- does not conform with Article 9 of the Patent Law, which prohibits double patenting.