Article 23 of China's Patent Law stipulates: "A design that has been granted a patent right shall be different from or similar to a design that has been publicly published in domestic and foreign publications or publicly used in China before the filing date." In other words, novelty and originality are the conditions for granting the patent right of design. At the same time, the definition of design in China's patent law is: a new design with aesthetic feeling and suitable for industrial application made by the shape, pattern, color or their combination of products. In other words, the design must be aesthetic and can be applied in industry. Therefore, the design patent must meet the following four conditions: (1) must be novel. Novelty is the basic condition for obtaining a design patent, that is to say, the patented design must be unprecedented. China's patent law stipulates that the time standard for judging novelty is the date of filing; Its regional standards, publication and publicity adopt world standards, and its use and publicity adopt domestic standards. That is to say, the patent design "should be different and not similar to the design that has been published in domestic and foreign publications or used in China before the application date". (2) It should be original. Many countries regard the originality of design as a condition for granting patent right. Originality mainly means that the patented design should have obvious characteristics or be "dissimilar" compared with the existing design. To judge whether two designs are similar, we should compare two similar products with designs to see whether they are similar as a whole, and we cannot grant patents to similar designs. (3) be beautiful. Different countries in the world have different regulations on whether there is aesthetic feeling as a patent for design. The United States, Britain, etc. do not regard aesthetic feeling as a condition for granting design patents. Germany, Japan and other countries regard people as the condition for granting design patents. The detailed rules for the implementation of China's patent law stipulate that the design should be beautiful. (4) It should be suitable for industrial application. Because the purpose of design patent is to promote commodity exchange and economic development, patent design must be suitable for industrial application, that is, it can be placed on products in the form of industrial production.
Legal objectivity:
As we all know, the appearance design mentioned in China's patent law "refers to a new design that is aesthetically pleasing and suitable for industrial application for the shape, pattern, color or their combination of products". Appearance design can protect the appearance of products, which can be three-dimensional modeling or surface pattern of products, or a combination of the two, and can be industrialized production and reproduction. Novel, gorgeous, exquisite, smooth and unique product and packaging design has the advantages of short development cycle, quick effect and high input-output ratio, and has made unique contributions to creating famous products and entering domestic and foreign markets. In addition to the above protection scope, in some special cases, we can also skillfully use design patents to safeguard intellectual property rights in other fields. 1998, the author received an organizer of Hong Kong's "International Fans' Club" and asked how to protect the emblem of China's "International Fans' Club". At that time, China's Trademark Law did not clearly stipulate the protection of collective trademarks. According to the characteristics of China's patent law, it is suggested that the organizers of the International Fans Association apply for the patent right of design from China National Intellectual Property Administration Patent Office with the emblem of the International Fans Association as the carrier. Organizers of the International Fans Association immediately applied for seven design patents named Badge (International Fans Association), Logo Card (International Fans Association) and Commemorative Card (International Fans Association), and obtained patent certificates. According to Article 2 of the Copyright Law of People's Republic of China (PRC), "The works of China citizens, legal persons or other organizations, whether published or not, shall enjoy copyright in accordance with this Law", and the emblem pattern of international fan groups shall be protected by law. At the same time, according to the provisions of Article 9 of the Trademark Law of People's Republic of China (PRC), the trademark applied for registration shall have distinctive features and be easy to identify, and shall not conflict with the legal rights previously obtained by others, and may also prevent others from registering the emblem pattern of the International Motorsports Association as a trademark. Recently, the organizers of the International Fans Association found that someone had printed the emblem of the International Fans Association on the business card without authorization. Entrusted by the organizer of the International Fans Association, the author publicized the common knowledge of intellectual property rights to the parties, and the parties agreed to immediately stop illegally using the emblem of the International Fans Association with the legal rights previously obtained by others. Imagine, if the emblem of the International Fans Association didn't get the design patent right seven years ago, perhaps the emblem of the International Fans Association has long been a trademark of others, and it is more likely to become a tool for others to make money.