According to Paragraph 3 of Article 2 of the Patent Law, the utility model referred to in the Patent Law means a new technical solution proposed for the shape, structure, or combination thereof of a product, suitable for practical use. This is a general definition of a utility model eligible for patent protection, not a specific standard for examining novelty, creativity, or practicality.
1 Utility Model Patents Only Protect Products
According to Paragraph 3 of Article 2 of the Patent Law, utility model patents only protect products. The said products should be manufactured by industrial methods, have a definite shape, structure, and occupy a certain space.
All methods, as well as naturally existing substances not artificially manufactured, do not fall under the object of protection of utility model patents.
The aforementioned methods include manufacturing methods of products, usage methods, communication methods, processing methods, computer programs, and using products for specific purposes.
For example, methods of manufacturing gears, dust removal methods in workshops, or data processing methods, and natural substances like Yuhuashi (a type of stone) do not fall under the object of protection of utility model patents.
An invention may include improvements to the shape and structure of a product, as well as to the specific methods or processes for producing the product, or the materials constituting the product itself. However, utility model patents only protect technical solutions proposed for the shape and structure of products.
It should be noted that:
(1) It is permissible to use the names of known methods in the claims to define the shape and structure of a product, but not to include steps or process conditions of the method. For instance, connections of various components defined by welding or riveting are not considered improvements to the method itself.
(2) If the claims include both shape and structure features and improvements to the method itself, such as technical features limiting the product manufacturing method, usage method, or computer program, they do not fall under the object of protection
of utility model patents. For example, a wooden toothpick with a cylindrical main body and a conical end, characterized by soaking in a medical sterilizer for 5 to 20 minutes after processing and shaping, then drying. Since these claims include improvements to the method itself, they do not fall under the object of protection of utility model patents.
2 Shape and/or Structure of the Product
According to Paragraph 3 of Article 2 of the Patent Law, the utility model should be an improvement proposed for the shape and/or structure of a product.
2.1 Shape of the Product
The shape of the product refers to its definite spatial form that can be observed externally.
Improvements to the shape of a product can be proposed for its three-dimensional form, such as improvements to the shape of a cam or a cutting tool, or for its two-dimensional form, such as improvements to the cross-sectional shape of a profile.
Products without a definite shape, such as gaseous, liquid, powdered, or granular substances or materials, cannot have their shape as a characteristic feature of a utility model product.
It should be noted that:
(1) Shapes formed by living organisms or naturally cannot be used as shape characteristics of a product. For example, the shape formed by the growth of plants in a bonsai or the natural formation of a rockery cannot be used as shape characteristics.
(2) Indefinite shapes obtained by methods like placement or stacking cannot be used as shape characteristics of a product.
(3) It is permissible for some technical features of a product to be substances without a definite shape, such as gaseous, liquid, powdered, or granular substances, as long as they are confined by the structural features of the product, such as in a technical solution for the shape and structure of a thermometer involving alcohol without a definite shape.
(4) The shape of a product can be a definite spatial form under certain circumstances, such as a novel-shaped ice cup or a parachute. For example, a steel strip packaging case used for transporting and storing steel strips, composed of an inner steel ring, outer steel ring, straps, outer plates, and waterproof composite paper, if it forms a definite spatial shape after packaging the steel strip according to the relational arrangement determined by the technical solution, this spatial shape is not arbitrary and the steel strip packaging case belongs to the object of protection of utility model patents.
2.2 Structure of the Product
The structure of a product refers to the arrangement, organization, and interrelationship of its various components.
The structure of a product can be a mechanical structure or a circuit structure. The mechanical structure refers to the relative position, connection, and necessary mechanical coordination of the components constituting the product; the circuit structure refers to the definite connection relationship between the components of the product.
Composite layers can be considered as a product structure. Carburized layers, oxide layers, etc., of a product fall under composite layer structures.
The molecular structure, composition, and metallographic structure of a substance do not belong to the structure of a product protected by utility model patents. For example, a welding rod that only changes the composition of the coating does not belong to the object of protection of utility model patents.
It should be noted that:
(1) The name of known materials can be included in the claims, i.e., applying known materials from existing technology to products with shape and structure, such as composite wooden flooring, plastic cups, memory alloy heart catheter stents, etc., do not belong to improvements proposed to the materials themselves.
(2) If the claims include both shape and structure
features, as well as improvements to the material itself, then it does not fall under the object of protection of utility model patents. For example, a rhombic-shaped tablet characterized by being composed of 20% of Component A, 40% of Component B, and 40% of Component C. Since these claims include improvements to the material itself, it does not fall under the object of protection of utility model patents.
3 Technical Solution
The technical solution referred to in Paragraph 3 of Article 2 of the Patent Law means a collection of technical means utilizing natural laws to solve a technical problem. Technical means are usually embodied by technical features.
Solutions that do not employ technical means to solve technical problems and achieve technical effects in accordance with natural laws do not fall under the object of protection of utility model patents.
New proposals for the shape of a product, patterns and colors on the surface, or their combination that do not solve a technical problem do not fall under the object of protection of utility model patents. New proposals for text, symbols, diagrams, or their combination on the surface of a product do not fall under the object of protection of utility model patents. For example: a computer or mobile phone keyboard with only changed text or symbols on the keys; a can opener decorated with zodiac shapes; chess or card games distinguished solely by surface pattern design, such as ancient poetry poker.
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