Why Apple Store’s Design Patent Application is Not Necessary? II

The post will be published on our website for two days, and today is the second half of it. (the image is the picture of Apple Store in Lujiazui from the www.apple.com.cn)

III. The legal risk in the lawsuit filed against design infringement

Furthermore, once Apple initiate the lawsuit basing on the design, it may be trapped in the patent validity and serial lawsuits, and it’s also a common challenge of patent lawsuits in China.

1. The poor stability of design patent

Despite the design patent is granted by the administration after approval, the organ will not examine the novelty and creativity of the patent applied for it being instable at all. For example, in the design dispute between SECO and HONDA (note: the link is in Chinese), when HONDA sued against SECO for the claimed plagiarism of SECO’s S-RV to its CR-V, the defendant filed the application of patent validity, and present the evidence including the previous design patent applied by HONDA.

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Why Apple Store’s Design Patent Application is Not Necessary? I

The post will be published on our website for two days, and today is the first half of it. (the image is the picture of Apple Store in Lujiazui from the www.apple.com.cn)

By the report of Shanghai Daily, Apple Inc filed an application to the United State Patent and Trademark Office (USPTO) for the appearance design of its store in Lujiazui, Pudong New Area. In consideration of the fake Apple Store in Kuning, Yunan Province in south and west China, the application made this time may be the international application, and will enter into China soon to stem the flooding knock off stores. More interesting is that the journalist of the Daily interviewed our attorneys before the report, and we reserved our opinion on the application. To complete our comments on it, here’s our analysis on the issue:

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Legal Difference between the Invention and the Utility Model in China Patent Law

Recently, we are consulted by foreign clients the difference between utility model and invention by China Patent Law. Today’s post is Bridge IP Law Commentary’s reply on the question. (the image above is the logo of the State Intellectual Property Office of China, the organ administrating in patent issues)

I. The difference in the scope of the protected object

According to the patent law, the “Invention” means any new technical solution relating to a product, a process or an improvement thereof, while the “Utility model” shall refer to any new technical solution relating to a product’s shape, structure, or a combination thereof, which is fit for practical use. Despite both being the technical solution, the utility model only involves the aspect of shape, structure and other tangible solution, while the inner process or intangible solution, like molecular structure or pharmacy, is included in the invention. Therefore, the utility model shall be included in the invention, thus any invention could also be applied as the utility model.

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