绿洲慧写 | AI 辅助专利撰写专家

The realm of design patents is vast, encompassing a wide array of creations from the aesthetic aspects of functional items to purely ornamental designs. However, not all designs are eligible for patent protection under the Chinese Patent Law. A significant stipulation, as outlined in Article 25(1)(vi), sets clear boundaries by excluding certain designs from being granted patent rights. This provision specifically addresses designs applied to flat printed matter, such as patterns, colors, or their combination, when they primarily serve as a mark. This blog post delves into the nuances of this exclusion, its implications for patent applicants, and the examination process as stipulated by the Implementing Regulations.

The Criteria for Exclusion

According to Article 25(1)(vi) of the Patent Law, a design must meet three specific conditions to be considered primarily as a mark on flat printed matter, and thus, not eligible for patent protection:

1. The product using the design is flat printed matter: This includes any design that is applied to surfaces or materials that are essentially two-dimensional, such as paper, fabric banners, or labels.
2. The design consists of patterns, colors, or their combination: This condition emphasizes the visual aspects of the design, focusing on its aesthetic appeal through the use of patterns and colors.
3. The primary purpose of the design is to serve as a mark: The design must be intended mainly to identify the source of the product or service to which it is applied. This means the design’s primary function is to act as a trademark or brand identifier, rather than to enhance the aesthetic appeal or functionality of the product itself.

The Examination Process

The Implementing Regulations, particularly Article 50(1)(iii), provide guidance on how these applications should be examined during the preliminary phase. The examination process involves a thorough review of the application’s documentation, including pictures, photographs, and a brief description of the design, to ensure it does not fall under the exclusion criteria mentioned above. The examiner’s role is to assess:

1. The nature of the product: Confirming whether the product is indeed flat printed matter.
2. The composition of the design: Determining whether the design is comprised of patterns, colors, or a combination thereof.
3. The design’s primary purpose: Evaluating whether the design’s principal function is to serve as a mark for identification purposes.

It’s crucial for applicants to understand that this exclusion does not apply universally to all designs applied to flat surfaces. For instance, wallpapers and textiles, although potentially meeting the first two criteria, are not subject to this exclusion due to their distinct nature and the roles they play in product aesthetics and functionality.

Implications for Applicants

For designers and patent applicants, it’s essential to recognize the boundaries set by Article 25(1)(vi). When considering the patentability of a design, it’s crucial to evaluate whether the design might be seen primarily as serving a marking purpose. If so, exploring alternative intellectual property protections, such as trademark registration, might be more appropriate.

In summary, the exclusion under Article 25(1)(vi) highlights the importance of the purpose behind a design when seeking patent protection. It underscores the distinction between designs that enhance the aesthetic or functional value of a product and those that serve primarily as identifiers or marks. For those navigating the complex landscape of design patents, a clear understanding of these provisions is indispensable, ensuring that their creations are not only innovative but also appropriately protected under the law.