Which products cannot apply for design patents?-Q&A.-Shenzhen deep trust patent Agency Co., LTD

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Which products cannot apply for design patents?

Release Time：

2023-05-05

A: There are three main circumstances under which a product cannot apply for a design patent:

First, in accordance with the provisions of Article 5, paragraph 1, of the Patent Law, no patent right shall be granted for an invention-creation that violates the law, social morality or is detrimental to the public interest. For example: The design of bed sheets with the pattern of RMB (against the law), the design of pictures or photographs with violent murder or obscene content (against social morality), the design of famous buildings (such as Tiananmen Square) and portraits of leaders, etc. (against the public interest), the design of the Chinese national flag or national emblem as the pattern content (against the public interest).

Second, according to the provisions of Article 25, paragraph 1 (6) of the Patent Law, no patent right shall be granted for the design of the pattern, color or the combination of the two of the flat printed matter, which is mainly used as an identifier. An application for a design patent falls into this category if the following three conditions are met: the product using the design is a flat print, the design is made in response to a pattern, color, or a combination of the two, and the design primarily serves as an identifier.

Third, according to the provisions of Article 2, paragraph 4, of the Patent Law, the term "design" as used in the Patent Law refers to a new design of the shape or pattern of a product or its combination, or the combination of color with shape or pattern, which is aesthetically pleasing and suitable for industrial application.

Those that do not comply with the above provisions are:

(1) Depending on specific geographical conditions, fixed buildings, Bridges, etc., which cannot be repeated. For example, a landscape villa that includes a specific landscape.

(2) Products whose shape, pattern and color are not fixed because they contain substances with no fixed shape such as gas, liquid and powder.

(3) The partial design of the product that cannot be divided or can not be sold separately and can not be used separately, such as heel, brim, cup handle, etc.

(4) For a product consisting of a number of components of different specific shapes or patterns, if the component itself cannot be sold separately and cannot be used separately, the component is not the object of design patent protection. For example, a set of jigsaw puzzle pieces composed of different shapes is the object of design patent protection only if all the pieces are applied together as one design.

(5) Can not act on the visual or the naked eye is difficult to determine, need to use specific tools to distinguish its shape, pattern, color items. For example, the pattern is a product that can only be revealed under ultraviolet light.

(6) The design required for protection is not the conventional shape of the product itself, such as the design of the handkerchief tied into the shape of an animal.

(7) The design with the original shape, pattern and color of natural objects as the main body usually refers to two situations, one is the natural object itself; One is the simulation design of natural objects.

(8) Works in the fields of fine art, calligraphy and photography.

(9) Designs consisting only of geometric shapes and patterns that are common in the field to which the product belongs.

(10) The sounds and meanings of words and figures are not subject to design protection.

(11) The pattern displayed after the product is powered on. For example, the pattern displayed on the dial of a digital watch, the pattern displayed on the display screen of a mobile phone, and the software interface.

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