As of June 1, 2021, designers and companies will have more flexibility in obtaining design patent protection in China. Under the new law, designers will be able to include only a portion of a product in the design patent claim instead of having to include the entire product, as is the case currently. For example, under the new law, a designer may choose to claim the ornamental appearance of just the sole of a shoe instead of the whole shoe. With the approach, only the sole would need to be knocked off to infringe the Chinese design patent. In contrast, under the current law, a designer would have difficultly trying to protect the ornamental appearance of only the sole of a shoe because the design patent is required to claim the whole shoe, and in this situation a knockoff shoe would have to copy the design of the entire shoe to infringe.

The new law also will extend the term of the design patents from ten years to fifteen years, counted from the date on which the application is filed, and will allow related applications to be filed by claiming priority to an earlier-filed Chinese design application (subject to a time limit).

Originally Published by Wolf Greenfield, February 2021

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