4.8.5 Identifying “prior design” and “priority date”
Article 23 paragraph 4 of the Patent Law specifies the following: “For the purpose of this Law, ‘a prior design’ refers to any design known to the public domestically and/or abroad before the filing date.” The definition of prior design is consistent with that of “prior art” in Article 22 paragraph 4 of the Patent Law.
With respect to priority rights, according to Article 11 of the Rules for the Implementation of the Patent Law, except for the circumstances provided for in Article 28 (determination of the date of filing) and Article 42 (the term of patent rights) of the 2008 Patent Law, “[t]he date of filing referred to in the Patent Law” means “the priority date where priority is claimed.” A priority right can be a foreign priority right or a domestic priority right, according to whether the first patent application is filed abroad or in China, respectively. China’s 1984 Patent Law only referred to foreign priority (Article 29 of the 1984 Patent Law). In 1992, the Patent Law was amended by adding the domestic priority of inventions and utility models (Article 29 of the 1992 Patent Law). In the fourth amendment to the Patent Law, the domestic priority of design patents was added. It is stipulated in Article 29 paragraph 2 of the Patent Law that priority may be enjoyed if a patent application for the same subject is filed with the patent administration department of the State Council within six months from the date of the first design patent application in China.
The determination of the filing date and priority date has an important impact on a court’s finding of whether a design patent meets the grant and confirmation conditions stipulated in the Patent Law and whether a prior design and prior design defense are established in civil patent infringement cases.