This comparison describes the systems in early 2014. China, the country with the largest volume of design applications, protects designs within the framework of its Patent Law, alongside inventions and utility models. This article introduces China's design system and compares it with Japan's, highlighting similarities and differences.
1. Protectable subject matter
Article 2 of China's Patent Law defines a design as a new design of a product's shape, pattern or their combination, or the combination of colour with shape or pattern, that has aesthetic appeal and is suitable for industrial application. Design protection therefore concerns a product's aesthetic appearance rather than a technical solution. The product must be capable of industrial production.
Japan protects designs under a separate Design Act, unlike China's unified Patent Law. Japan also recognizes partial designs and graphical user interfaces (GUIs), while China's law at the time does not provide corresponding protection. For example, inseparable parts of a product, such as a cup handle, hairdryer handle or tyre tread, cannot be protected on their own as partial designs in China. Patterns displayed when a product is powered on are also excluded, preventing protection for products incorporating GUIs.
Proposed amendments to China's examination guidelines would narrow that exclusion to patterns on a product's display that are unrelated to human-computer interaction or the implementation of product functions. Certain displayed patterns could consequently become eligible for design protection.
2. Examination
Under Article 40 of China's Patent Law, SIPO grants a design patent if preliminary examination reveals no grounds for rejection. This examination principally covers the form of the application documents, obvious substantive defects, and formal requirements for other documents and procedures.
In Japan, examiners conduct substantive examination, including searches for prior designs.
3. Other differences
Exceptions to loss of novelty
China provides a six-month grace period for the three types of disclosure specified in Article 24: first display at an international exhibition sponsored or recognized by the Chinese government, first disclosure at a prescribed academic or technological meeting, and disclosure by another person without the applicant's consent. Filing within six months of such disclosure prevents loss of novelty and inventive step. Japan also provides a six-month period at the time, but covers a wider range of disclosures.
Priority based on other application types
In China, a later design application may claim priority only from an earlier design application. It cannot, for example, claim priority from a foreign utility-model application. A Japanese design application may also claim priority from an earlier foreign patent or utility-model application.
Multiple designs in one application
Article 31 of China's Patent Law permits two or more similar designs for the same product, or designs for products in the same class that are sold or used as a set, to be filed in one application. Under Rule 35, no more than ten similar designs for the same product may be included. Products forming a set must fall within the same class of the International Classification for Industrial Designs.
Japan applies the principle of one application per design more strictly, but a qualifying set of articles may be filed and registered as one design.
Term of protection
In China, design protection lasts ten years from filing. In Japan, the term described in this article is twenty years from registration.
