Newsletter
Rapid Growth in the Number of Requests for Patent Right Evaluation Reports on Designs in China
According to Article 40 of the Patent Law of the People's Republic of China, where it is found after preliminary examination that there is no cause for rejection of an application for a patent for design, the State Intellectual Property Office (the SIPO) shall make a decision to grant the patent right for design, issue the relevant patent certificate, and register and announce it. In other words, a PRC design patent application is not subject to substantive examination before the design patent is granted. As such, it is stipulated under Article 61, Paragraph 2 of the Patent Law that: where any infringement dispute involves a patent for a design, the people's Court or the administrative authority for patent affairs (i.e., regional patent office) may ask the patentee or interested party to furnish a report on the patent right prepared by the SIPO after conducting a search, analysis, and evaluation on the relevant design as evidence for judging and handling the infringement dispute. In practice, besides the people's court and regional intellectual property offices, Customs of People's Republic of China will usually require from the patentee a patent right evaluation report on a design when handling cases involving a request for a border action based on a PRC design patent.
The patent right evaluation report system for design was added after the 3rd amendment of the Patent Law of the People's Republic of China and went into force on October 1, 2009. The SIPO began accepting requests for design patent right evaluation report as of July 2010. There were only 33 requests for patent right evaluation reports in 2010 and 390 requests in 2011. By 2014, the number of requests reached 4,052 and continues to climb rapidly. As of August 15, 2015, there had already been 3,311 requests, 53% more than the same period in 2014. This growth in requests for reports suggests a corresponding aggressiveness in asserting design patent rights. According to statistics announced by the SIPO, about 22% of patent right evaluation reports on designs were unfavorable to the patentee.