In August 2008, the Third Amendment to the Patent Law of China (draft) (“Draft Amendment”), was presented to the National Peoples Congress for final deliberation and is expected to become law by early 2009. This Draft Amendment is the subject of heated discussions throughout China. This article will give you an overview of some important changes relating to design patents.

I. Protection to Design Patents Broadened

The Draft Amendment extends the protection of design patents to cover the activities of offering for sales so that such offer-for-sale activities are prohibited without the patentee's authorization. Thus legal action can be taken to stop the showing or advertising of infringing products, which may be useful in preventing infringing products from entering the market. (Draft: Article 12, Feb 28th, 2008)

II. Higher Standard for Novelty

One of the most important changes is raising the standard for novelty from relative to absolute. In the Draft Amendment, the change to absolute novelty not only apply to design patents, but also apply to invention and utility patents.

Under the current patent law, a design is novel as long as it is not identical or similar to a published design in China or abroad, or a design in use in China. Under the Draft Amendment, for a design to be novel and patentable, it must be substantially different from designs and from the combinations of existing design characteristics, existing inside or outside China. (Draft: Article 24, Feb 28th, 2008)

III. Discourage Using Design Patents as Product Labels

The following is new language in Article 24: “A design patent should not be classified as a design when its mainly used as a product label with pattern, color or the combinations of them on plane printing.” The new language attempts to distinguish design patents from trademarks. This provision is intended to discourage applicants from using design patents to protect trademarks.