Different from other jurisdictions, there is no "partial design" protection system in China under the Chinese Patent Law. It has been nerve-wracking for some automobile makers to protect their automobile designs in China effectively, since the knock-off products may plagiarize solely a portion not the whole designs of their automobiles. Instead of complaining of China's design patent system, what can you do to protect your automobiles' designs effectively by taking advantage of the current patent practice in China?
Within the domain of Chinese design patent, the answer is very simple. Besides filing a design application for the whole automobile, you can also file design applications for the parts of the automobile.
There is no doubt that a whole industrial product is consisted of many separate parts. In China, not only the whole product, but also the parts of the whole product, can be protected by design patents, whether they are spare parts or not, whether they can be seen or not in normal use state. For example, you can obtain a valid design patent for your engine used in your car. You can also obtain valid design patents for the bumpers, the front and rear lights, the grid, the doors or even the engine hood of your car, so that others are excluded from using the identical or similar designs within the protection term of the design patents in China.
Besides filing design applications for the parts, automobile makers may also file design applications for their assembled products consisting of several parts, such as the center console, as long as the assembled products meet the "separate product" test. Under "separate product" test, when a claimed design is incorporated into a portion of a product, which is not separable from the whole product physically or which can not be sold nor used separately, the design is a "partial design" and is not eligible subject matter for protection under the Chinese Patent Law.
A design patent in China can not extend to cover the identical or similar design incorporated into a product of different categories. Therefore, automobile makers shall further consider filing design applications for toy cars or other products which may incorporate the same designs as their automobiles, in order to exclude others from duplicating the deigns on other products.
Originally published August 2015.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
