This comparison describes the systems in early 2014. China protects designs, inventions and utility models under one statute, the Patent Law. This article introduces China's design system and compares it with South Korea's, explaining their 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. Protection concerns the product's appearance rather than a technical solution. The product must be suitable for industrial mass production.
South Korea protects designs under a separate design statute. It recognizes partial designs and graphical user interfaces (GUIs), whereas China's law at the time does not offer corresponding protection. China does not protect inseparable parts, such as cup handles, hairdryer handles or tyre treads, as partial designs. The exclusion for patterns displayed after a product is powered on also prevents design protection for products incorporating GUIs.
Proposed amendments to China's examination guidelines would limit that exclusion to displayed patterns unrelated to human-computer interaction or the implementation of product functions, allowing protection for certain patterns on product displays.
2. Examination and protection period
Under Article 40 of China's Patent Law, SIPO grants a design patent after preliminary examination if there are no grounds for rejection. Examination covers the form of the application documents, obvious substantive defects and formal requirements for other documents and procedures. South Korea generally conducts substantive examination, including searches for earlier designs, while designated product categories are subject to a separate simplified examination system.
The Chinese design term is ten years from filing. The South Korean term described here is fifteen years from registration. South Korea also has a secret-design system: on the applicant's request, publication may be withheld for up to three years from registration. China has no corresponding system.
3. Other points
Exceptions to loss of novelty
China provides a six-month grace period for the disclosures 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 without the applicant's consent. A design application filed within six months does not lose novelty because of such disclosure. South Korea also provides a six-month period at the time, but covers a wider range of disclosures.
Priority
Under Article 29, a Chinese design application can claim priority only from an earlier foreign design application; it cannot claim domestic design priority. The same distinction applies in South Korea. For example, if design application A is an international filing abroad under the Hague Agreement and B is a domestic Chinese design application, a later Chinese application C may claim priority from A but not B.
China also requires the earlier application to be a design application. South Korea permits a design application to claim priority from an earlier foreign patent or utility-model application as well.
Multiple designs and sets of articles
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. Rule 35 limits similar designs for the same product to ten. Products forming a set must belong to the same class in the International Classification for Industrial Designs.
South Korea follows the principle of one application per design, but allows a qualifying set of articles used together and having overall unity to be examined and registered through one application.
Multiple-design applications for designated product categories are subject to special rules.
