Partial Designs have been allowed in China since June 1, 2021, when the Fourth Amendment to the China Patent Law became effective. Judgment of the unity of multiple designs has become more complex and sophisticated since partial designs have been protected in China. This article will introduce the circumstances under which multiple design applications can be placed in a single design application. The article will also elaborate on the conditions under which divisional applications can be filed based on a parent partial design application.
1. Introduction of partial designs
Article 2, Paragraph 4 of the Patent Law of China stipulates, "Design means, with respect to an overall or partial product, any new design of the shape, the pattern, or their combination, or the combination of the color with shape or pattern, which is rich in an aesthetic appeal and is fit for industrial application."
If the claimed part is an inseparable part of the product, the
application should be submitted as a partial design, such as the
handle of a cup. A partial design that can be patented must meet
the following three conditions:
1) It is a new design. Whether an application belongs to a new
design should be judged based on the design of the claimed part,
rather than that of the entire product. If the claimed part is a
common geometric shape in the field to which the product belongs,
such as a rectangle, it is not a new design.
2) The claimed part can form a relatively independent area on the product and constitute a relatively complete design unit.
3) The claimed part cannot be just a pattern on the surface of the product or a combination of pattern and color, such as the pattern on a motorcycle.
2. Unity of Partial Designs
According to Article 31, Paragraph 3 of the Patent Law of China, "a patent application for a design shall be limited to one design. Two or more similar designs for the same product or two or more designs which are incorporated in products belonging to the same category and sold or used in sets may be filed as one application."
2.1 Multiple parts of the same product can be considered as one design. They must meet the following requirements: of the same product, related in function or design, and forming a specific visual effect.
2.2 Two or more partial designs can be filed in one application as similar designs. The following requirements must be met：
(1) Same product: The same product means that the overall product of each design and that of the basic design application should be the same.
(2) Having the same or similar design features:
i. The difference only lies in minor local changes, the usual design of the product, repeated arrangement of design units, changes in color elements, etc.
a. Minor local changes
b. Common designs for this type of product (e.g., stools)
c. Repeated arrangement of design units (e.g., buttons on a switch panel)
d. Only change in color
ii. The difference lies in the regular change in the position and/or proportion of the partial design in the overall product.
Example: The difference between Design 1 and Design 2 only lies in the position of the button of a music player.
Note: Partial designs cannot be filed in a "Products in Sets" application.
3. Divisional Applications
3.1 Circumstances in which a divisional application may be filed:
If the original application (parent application) contains two or more designs, the divisional application shall be one or more of the designs in the original application and shall not exceed the scope indicated in the original application.
For example, the original application is "Vehicle and Front Part of Vehicle," comprising two designs.
It can be split into two applications as follows.
3.2 A divisional application cannot be filed in the following 3 situations.
- If the original application protects the overall design of the product, it is not allowed to file a divisional application to protect a partial design of the product.
- If the original application is a partial design, it is not allowed to file a divisional application to protect the whole product.
- If the original application is for a partial design of the product, it is not allowed to file divisional applications to protect other parts of the product. In other words, it is not allowed to change the design of part A of the product to part B of the product.
However, the above three types of amendments can be filed within the voluntary amendment period (within two months of the application date).
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.
