The Chinese Legislature approved a number of amendments to the Chinese Patent Law on December 29, 2008, resulting in the third revision of the Law. The revisions dealt with changes to patent application filing, criteria for granting patents, protection of patent rights, and compulsory licensing.
Revised Article 26, Paragraph 1, Item 6:
Below are the revisions to the patent law that deal with changes to criteria for granting patent rights. Stay tuned to the blog for further updates to this topic.
Previously in this topic: Third revision of China's Patent Law -- Patent Application Filing
Absolute Novelty
Revised Article 23:
"Any invention or utility model for which patent right may be granted must possess novelty, inventiveness and practical applicability.
Novelty means that, the invention or utility model shall neither belong to the prior art, nor has any other person filed before the date of filing with the Patent Administrative Department Under the State Council an application which described the identical invention or utility model and was published in patent application documents or announced in patent documents after the said date of filing.
Inventiveness means that, as compared with the prior art, the invention has prominent substantive features and represents a notable progress and that the utility model has substantive features and represents progress.
Practical applicability means that the invention or utility model can be made or used and can produce effective results.
The prior art referred to in this Law means any technology known to the public in this country or abroad before the date of filing".
In the revised patent law, the definition of "prior art" is broadened to include public use or other means of disclosure outside China. In the previous Chinese patent law, disclosure of an invention to the public by means other than publication (such as, for example, use, sale or display) did not constitute a novelty bar.
Patentability requirements for design patents
Revised Article 23:
"Any design for which patent right may be granted shall neither belong to the prior design, nor has any other person filed before the date of filing with the Patent Administrative Department Under the State Council an application which described the identical design and was announced in patent documents after the said date of filing.
Any design for which patent right may be granted shall be obviously differentiable from the prior design or a combination of features of the prior design.
Any design for which patent right may be granted must not be in conflict with any prior right of any other person.
The prior design referred to in this Law means any design known to the public in this country or abroad before the date of filing".
In the revised patent law, an inventive step is now added to the novelty analysis for design patents. Furthermore, the definition of "prior design" is added, covering all disclosed designs in China and abroad.
Non-patentable subject matter for design patents
"For any of the following, no patent right shall be granted:
(6) Two-dimensional designs made of patterns, colors or their combination, for the purpose of indication".
Under the new patent law, two-dimensional designs such as labels, or having labeling as their primary function will no longer be granted protection.
Stay tuned to www.maierandmaier.com for further updates on this and other IP topics.
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