Protecting Your Product Designs in China

Date: August 26, 2015

Protecting Your Product Designs in China

Intellectual Property Protection in China

In China, people are more likely to prefer design patents over invention patents. Design patents are usually a combination of certain patterns, colors, or shapes with a particular appeal either functionally oraesthetically, and application industrially. These design features are usually of the patentable variety. The law around them extends to designs that are two or three dimensional.

Design patent restrictions in China are not as obtuse as they are in the United States. Getting a patent isn't too expensive, and it's generally swift. The person needing a patent must fill out an application and submit pictures, drawings, or other identifying items with a design description. These are important to specify unique features that define the individual design. When taking pictures or drawings, right, front, back, bottom, left and top perspectives must be represented. These details determine how extensive patent protection under the PRC will be. What is exceptionally lucky for the aspiring patent holder is that Chinese design patents aren't beholden to examination in a substantive sense. SIPO, the State Intellectual Property Office, looks at what the applicant provides in order to determine whether a given design is worthy of protection. They just want to be sure the applicant has jumped through the formal hoops and paid the contingent fee. This process requires between six and twelve months.

China is a first-to-file country; which means the first person to file a patent generally receives the rights to that design. China uses patents to protect Intellectual Property Rights (IPRs) and restrict the counterfeits flowing from the country. Patents are important in business and other application. Without one it isn't illegal for an individual to steal designs. China made its current patenting laws to prevent such activity. Those laws have been continuously developing almost daily. There are grace periods available: under a 2008 patent law, they can last six months in certain scenarios. Basically, using an invention in a foreign country before it has been patented in China bars it from patenting in China. The only way out is in certain foreign applications where priority is claimed through Chinese application.

Rigorous measures to increase a potential fraudulent claim's burden of proof were recently invoked by the People's Supreme Court in 2014. This issue has been reviewed by the highest courts in the land to dispense the most just decisions. It has been recognized people are getting away with fraud by changing one or two letters in a design, so it is the prerogative of Chinese courts to prevent this. They have been moderately successful.

The world is familiar with various frauds that come out of China. Like eMacs and Apples, or Soni headphones, or Playing Stations. A great number of hucksters have been playing loophole charades with Chinese patent laws, or lack thereof, for decades. Because of this, the national government has decided to put its foot down and prevent such exigencies wherever possible. Now, infringement on patents via fraud in a mode of recidivism can result in capital punishment.

Chinese patent law does not protect unregistered designs. So protecting your product design in China does require that it be registered. It isn't illegal to capitalize on an unregistered design in China. There are some unique enforcement options in China. Someone who holds IPRs, or Intellectual Property Rights, can either choose to have a civil court handle a dispute, or a special administrative body under SIPO. SIPO is usually quicker and cheaper, but doesn't have as extensive injunctions or compensation measures.

It is China's prerogative to stem the tide of counterfeits, so it is currently working on legislation to keep fraudulent businesspersons from using company names for promotional purposes. Trademarks and Copyrights are also quickly finding more protections under the law.

In the end, patenting is not as difficult or as unfair as it has been in China's past, and it is entirely possible to protect your assets in a way that will garner you court support.

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