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
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
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.
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