A design patent protects the design of a product, for example, the shape or pattern of the product, or the combination of shape, colour or pattern. The design must have an aesthetic value and industrial use. It takes about one year to be granted and the term of protection is ten years if renewal fees are paid. The protection is not for the functionality of the product.
The colour of a product alone is not patentable unless the change of colour can be regarded as a pattern. The colour criterion does not include the natural colour of the raw material of the product. It is recommended that your design includes a combination of colours, shape and/or pattern to hinder the design patent from being easily invalidated after it is granted.
Advantage
1. Only takes approximately a year to be granted
2. Lower application fee of RMB 500 compared to the invention patent
Disadvantage
1. Lack of substantive examination, which can make it easy for imitators to apply for their own design patent based on your design
KEY CRITERIA
1. Overall look: The protection of a design patent strictly covers the distinguishing overall look of the product. It is unrelated to technical, functional or inventive aspects of the product.
2. Inventiveness: The design of a design patent should be obviously distinguished from any prior design or combination of the features of the prior designs.
3. Conflict of prior rights: A design patent must not conflict with prior rights such as copyright or trademark right obtained by a third party.
