A: 1. What are the conditions for obtaining a design patent?
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. 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. Therefore, the design patent shall 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.
Second, how to judge without losing freshness
Article 24 of the Patent Law stipulates various situations in which the invention-creation applying for a patent will not lose its novelty within six months before the date of filing.
(1) First exhibition: refers to the inventions and creations exhibited for the first time in an international exhibition sponsored or recognized by the China Municipal Government. In this case, when applying, the applicant shall make a statement and submit the supporting documents issued by the organizational unit on the inventions and creations that have been exhibited within 2 months from the date of application and the date of exhibition.
(2) First publication: refers to the invention and creation published for the first time at the designated academic conference or technical conference (including technical appraisal conference). Academic conference refers to academic conference or international academic conference. Technical meetings, including appraisal meetings, refer to technical meetings directly organized and presided over by various ministries and commissions in the State Council. The applicant shall submit supporting documents within 2 months from the date of application.
(3) The situation that others disclose their contents without the consent of the applicant refers to illegal abuse of power and plagiarism of other people's inventions. For example, without the permission of the employing unit or the unit jointly completed by * * *, the invention created by the post or the invention created by * * * is made public. In these cases, as long as the actual obligee applies and provides evidence within six months of publicity.