China's Design Patents

[Randy W]

If you've seen the headlines as in the WSJ - Beijing Regulator Orders Apple to Stop Sales of Two iPhone Models

 

The author points out “I could probably secure a China design patent on the blue socks I am wearing right now.”

http://www.chinalawblog.com/wp-content/uploads/sites/110/2016/06/Blue_sock-320x271.jpg

 

from the China Law Blog

 

China’s Design Patent Scourge Has Snared Apple: Nobody Panic

Big media today has been covering Apple’s BREA design patent dispute with “a small Chinese competitor”

 

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What exactly is a China design patent? China’s design patent law design is defines a design as a shape, pattern, or combination thereof or the combination of a color with a shape and pattern, with an aesthetic appeal and for industrial application. If you think this definition is incredibly vague and potentially broad enough to drive a truck through, you would be right. On top of this, China’s patent office does not “review” design patents before granting them.

 

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There is no substantive examination of a design patent application in China. Instead, all you really need to do to get a China design patent is to complete your design patent application properly. So if I complete the design patent application on my blue socks, and attach a proper and appropriate drawing of them, along with a proper power of attorney and I make the right claims regarding my having designed my blue socks and regarding their being of a new design, I almost certainly will get my design patent.

BUT, my blue sock design patent will be as weak as a kitten. And it is for this reason why China design patent actions are not as scary as they first appear and why I am calling for nobody to panic on Apple’s behalf either.

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the Chinese companies threaten to get an order blocking our client from having its product made in China, but they never do. They never do because they know the cost of doing so is high and the likelihood of their getting such an order and having that order stick is very low. I read somewhere once that something like 70 to 90 percent of all Chinese design patents get invalidated when challenged.

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In the Apple case, the Chinese company has brought a lawsuit and by doing so it has increased its threat value. Did the Chinese company do this because it has a valid patent? Or is it because it views Apple has having such deep pockets it has decided to go strong in the belief that doing so will get Apple to pay big money in settlement to end the issue? I don’t have the answers.