Introduction of Partial Design is one of the most important changes in the upcoming new Chinese Patent Law and that will come into effect from June 1, 2021.
The current Chinese patent law excludes the protection for partial design. Namely, a portion of a product which cannot be partitioned or which cannot be sold and used independently can't be protected, such as a bottle-neck, ears of a vase, etc. However, such will be acceptable to the CNIPA soon after June 1 of 2021, in order to be in line with the international practice.
The Implementation Regulations of the Chinese Patent Law (Draft) stipulate the following details on how to protect a partial design: Applicant(s) should submit a drawing of the whole product in which the part to be protected should be shown in solid lines in combination with dashed lines. If necessary, the part to be protected could be explained in the Brief Description.
Based on this statement, it implies that the drawing requirement of partial design in China is slightly different from those in US or Europe. For example, the partial design is still adhered to a product, and the parts that are not to be claimed should not be omitted in the drawings. Dashed/dotted lines will be allowed in the drawings, but shading lines may still not be acceptable.
A question commonly asked frequently by the Applicants was whether partial design is only applicable to applications filed after June 1 of 2021 or to applications pending as of June 1 of 2021.
The answer is this is NOT clear now, as the CNIPA has not announced any transition-period method yet. However, in order to maximally preserve the Applicants' right to enjoy the partial design protection during this transition period, we would suggest Applicants file both partial designs and full designs in one CN design application for the moment, in a hope that the new law will apply to the divisional design application which can certainly be filed after June 1 of 2021.
We are awaiting the final version of the Implementation Regulations and the transitional method for details of partial design, and we will keep you updated on how the partial design will be carried out in China during both prosecution and enforcement litigation.
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.