Applying the ‘exception to loss of novelty’ to design patents in China

Article 24(4) of the Chinese Patent Law provides that a patent application will not lose its novelty if, within six months before the filing date, the subject matter of the application is disclosed by another person without the consent of the applicant. In Beijing Qihoo Technology, Beijing Qizhi Business Consulting (collectively ‘Qihoo’) v China National Intellectual Property Administration (CNIPA) and third party Beijing Jiangmin New Science & Technology, the Supreme Court of China clarified the application of the above “exception to loss of novelty” provision when a design patent is disclosed in an unusual way before the filing date.

At issue is design patent No. 201430324283.6 titled “computer with graphic user interface (GUI)”, issued to Qihoo. Jiangmin requested for invalidation of the design patent with the Patent Reexamination Board (PRB, now Reexamination and Invalidation Department of the Patent Office, CNIPA) claiming the design patent was, among other factors, obvious over a prior design. The PRB sided with Jiangmin, deciding that the design patent was invalid as obvious. The decision was affirmed by the Beijing IP Court. Qihoo appealed to the Supreme Court.