The provisions for design patent are a key part in this Third Amendment to the Patent Law. Compared with the current Patent Law, the new Patent Law mainly includes amendment on design patent in the following six aspects:

1.The scope of design patent to which a patent right may be granted has been restricted.
The number of applications for design patent accepted by the Chinese patent authority is quite considerable, but the level of the applications is less than satisfactory. Quite many applications only relate to pattern, color or improvement by combination of the two in a plane presswork. Such designs in plane presswork are mainly functioning as an indication rather than an improvement to the design of the product; they do not have any proactive effect on the enhancement of the designers’ ability in designs of products. Besides, if the patent right is granted to a design which only functions as an indication, it will lead to unnecessary cross and overlap with trademark right and copyright, which will usually cause unfair protection over a same object in practice and confusion in the application of law.
To solve the aforesaid problem, Article 25 of the new Patent Law has added one more circumstance where no patent right should be granted, specifically, designs which are mainly used to indicate the pattern, color or their combination of plane presswork shall not be granted a design patent right.

2.The conditions for granting a design patent right have been improved.
The current Patent Law provides that a design for which a patent right is granted can not be identical with or similar to any design before the filing date. Among the applications for design patent accepted and the design patents granted by the Chinese patent authority, some designs are achieved through imitation of the existing designs or simply by putting together the features of the existing designs, which are at a relatively lower level of innovation and not to the advantage of playing a full role of the Chinese patent system in the innovation of designs of products.
In order to enhance the level of innovation in the designs of products, the new Patent Law has improved the standard according to which a design patent is granted, showing the following four features: (1) Any design for which a patent right is granted shall not be attributable to any existing design; (2) Specifically, “not attributable to any existing design” refers to that the design for which a patent right is granted shall be distinctively different from to existing designs or the combination of such existing designs; (3) Application for design patent shall not be attributable to the scope of conflicting application; (4) Any design for which a patent right is granted shall not be in conflict with any rights already obtained lawfully by another party before the filing date.

3.Two or more related design patents may be files as one application.
In practice, a designer, based on a new basic design for a same product, usually will propose many designs similar to the basic design (referred to as “related designs”). According to the current Patent Law, the related designs can only be filed as separate applications, which places a great burden on the applicant and is not to the advantage of protection over design patent. In order to change this, Article 31.2 of the new Patent Law provides that related designs can be filed as one application.
As for the specific number of related designs permitted to be filed in one application, the new Patent Law does not include such a provision; however, in the draft Implementing Regulations of the Patent Law, it is provided that at most ten related designs can be filed in one application. Although the Implementing Regulations has not been passed yet, it can be predicted that the number of related designs permitted in one application will be restricted to some extent.

4.“Brief Statement” has become an essential application document.
The current Patent Law provides that the protection scope of a design patent right shall be subject to the design of the product displayed in the pictures or photos. Article 27 of the new Patent Law provides that a brief statement on the design shall be submitted, which has made the “brief statement” an essential application document. In addition, Article 59.2 of the new Patent Law provides that the brief statement may be used to explain such design (as displayed in pictures or photos). This has provided a more scientific and reliable way for determining the protection scope of a design patent right.　
There is no detailed provision in the new Patent Law as to the specific form and content of the brief statement; this will need to be further specified in the Implementing Regulations or the Guidance for Patent Examination.

5.The system of assessment report on design patent right has been established.
As for both a design patent and a utility model, only preliminary examination is required under the current Patent Law rather than substantial examination required of an invention; whether the granting of the patent right is compatible to the Patent Law is in many circumstances not clear. This may bring adverse influence to both the patentee and the social public. In order to overcome this problem, the new Patent Law has introduced in the assessment report on the design patent, where Article 61 provides that where a patent infringement dispute involves a design patent, a people's court or administrative authority for patent affairs may require the patentee concerned or any interested party to provide an assessment report on the design patent.

6.The scope of protection of design patent has been improved.
Article 11.2 of the current Patent Law only provides that without the authorization of the patentee, no entity or individual shall make, sell or import the product incorporating the patented design for production or business purposes, which excludes the conduct of offer to sell from the scope of infringement and further leads to that the design patent can not be fully protected sometimes. Article 24 of the Several Provisions of the Supreme People’s Court on the Application of Law in Handling Patent Dispute Cases, offer to sell refers to giving an offer of selling the product by means of making advertisement, display in the shop window or show on an exhibition. Such a conduct is in common existence in practice, especially in the circumstance where only sales to buyers abroad is concerned; the infringers usually aim at products which have used the patented design of the patentee, concealing the manufacturing of such products and exporting the products directly through the customs instead of selling the products to buyers within China. As a result, the patentee can hardly get any evidence during the manufacturing and sales stages. Article 11.2 of the new Patent Law, based on the current Patent Law, has included “offer to sell” into the scope of infringement upon design patent, which enables the patentee to collect the evidence during the stage of “offer to sell” and may stop the infringement upon design patent right before any damage is actually incurred; this has improved the scope of protection of design patent and has kept consistency with the provisions for invention and utility model.

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