James J. Aquilina, Of Counsel

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New Revisions to Chinese Patent Law Increase Design Patent Harmonization 

Protecting the Product James J. Aquilina

The China National Intellectual Property Administration (CNIPA) has recently published a Fourth Revision to the patent laws of the People’s Republic of China, and included in those revisions are several updates that help move Chinese design patent law towards harmonization with the laws of most other major markets. In particular, the following revisions—which will come into effect on June 1, 2021—are the most relevant for Chinese design patent applicants and design patent holders:

  • Expansion of the definition of a patent-eligible design to read “of the whole or part of a product” (Article 2) to permit for “partial design” claiming;
  • extension of the duration of design patent protection from 10 to 15 years, calculated from the date of application filing (Article 42);
  • addition of the ability to claim the priority of a prior-filed Chinese design patent application filed less than six months prior (Article 29);
  • for cases of intentional patent infringement, the addition of a punitive damages remedy of up to five times the calculated damages amount (Article 71);
  • where damages can’t be calculated, an increase in the available statutory damages range from RMB 30,000-1,000,000 (approximately $1,500-$150,000 USD) to RMB 30,000-5,000,000 (approximately $4,500-$750,000 USD) (Article 71); and
  • extension of the statute of limitations period for alleging patent infringement from two to three years (Article 74).

Undeniably, the most important of these revisions will soon allow for Chinese design patents to protect partial products. However, it remains to be seen whether CNIPA will begin to allow the use of broken lines in design patent drawings to show portions of a product which form no part of the claimed design, as is standard in the United States and many other countries. Accordingly, special care must still be taken to ensure that any design patent drawings that are intended for use in China are prepared with an eye towards the different design drawing rules and regulations that continue to exist.

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