According to the PRC (China) Patent Examination Guidelines, comparison of a claimed design to a citation for deciding whether the two are the same or similar should be based on an ordinary customer's observations on each of the two as a whole. The PRC (China) Patent Law provides that the scope of a design patent should be decided based on the drawings or photos thereof. "Design" refers to any new design of the shape, the pattern, or their combination, or the combination of color(s) with the shape or pattern, of a product, which creates an aesthetic feeling and is suitable for industrial application. Since the text of the citation does not include any shape, pattern or color, it cannot disclose or suggest the features of the claimed design.
In a China design invalidation action, the invalidation petitioner cited a utility model patent, the drawings of which do not disclose the "inclined tongue" shown in the drawings of the design patent, No. 200830245821.7, entitled "anti-theft lock (double arc)." After losing the second instance of the court actions following the design invalidation action, the invalidation petitioner requested a retrial with the Supreme People's Court and claimed that although the citation does not illustrate the "inclined tongue" in the claimed design, it illustrates and describes a square handle hole, which suggests the existence of an inclined tongue. However, the Supreme People's Court indicated that the square handle hole of the citation does not disclose the "inclined tongue" in the claimed design and the text of the citation is not capable of showing any shape or position of any part of the claimed design and thus cannot be used for invalidating a claimed design. Based on this reason, among others, the Supreme People's Court dismissed the request.