By: Jimmy Yang & Bin Yin, registered patent attorneys at Guangdong Pingo Law Firm, China
Filing a design application usually takes up to 3 days because the attorney needs to conduct a brief search, regulate the documents such as POA, and obtain confirmation of the disclosure form from the client in China. What should you do when the deadline is tomorrow and the client does not have any drafts?
In this article, we will show how we helped the client save the priority claim and completed filing 4 design applications just 5 minutes before the deadline.
What should you know about priority claims for design applications in China?
A priority claim is a legal concept that allows an applicant to claim priority over an earlier application that was filed in another country. This means that if you have filed a design application in your home country, you can claim priority when filing an application in China.
To claim priority for the same application in China, you must file your design application within SIX months (12 months for utility model/ invention) of the original filing date in the original country or regional international organization (e.g., EUIPO, OAPI). You must also provide a certified copy of the original application with three months from subsequent filing date, along with a translation into Chinese. From January 20th, 2024, the applicant can restore the priority by paying official fees of 1000 CNY within 2 months after that 12 months for utility and invention.
If your application is successful, you will be granted the same filing date as your original application. This means that any subsequent applications filed by others will be considered later and will not have priority over your application. More importantly, any disclosure before the Chinese filing date CAN’T lead to the lack of novelty of the Chinese application.
How we filed 4 design applications in 5 hours
The client wanted to file 4 design applications with a priority claim for each of them. At first glance, it seemed like a usual filing, but it was discovered that the deadline for claiming priority was tomorrow. If the client did not apply for that by tomorrow, they would lose their rights for a priority.
Another important issue was the time zone because there were only 6 hours left before the deadline. We started to collect the necessary documents and information that we needed for filing, such as applicant’s information, previous design application, POAs, etc., and started filing with just 5 hours left before the deadline.
Finally, we completed filing at 11:50 pm China time and successfully filed 4 design applications with just 5 minutes left before the deadline. Now the client has 3 months to prepare the priority proof. Read more about design registration in China.
What is the deadline for filing proof for design applications in China?
Proof of design application is a legal requirement in China that requires applicants to submit evidence of their prior design application. This evidence can include a copy of the application that must be certified by the original patent office (e.g. USPTO, EUIPO) and can show the original application number, date, and applicant’s full name.
The purpose of proof of design application is to ensure that the applicant has actually filed an application and is entitled to protection under Chinese law. It is a critical step in the subsequent application process, and failure to provide proof can result in the application being rejected.
The deadline for filing proof (the scanned is acceptable) of a design application in China is THREE months from the date of filing the application. This means that if you filed your design application on January 1st, you must submit proof of the application by April 1st.
It is important to note that this deadline is non-extendable, which means that if you miss the deadline, your application is deemed to withdraw the priority. It is therefore essential to ensure that you file your proof of design application in a timely manner.
Conclusion
Filing a design application with priority claims in China can help to protect your business and brand in the global innovation leader country. We highly recommend that you do not postpone filing if you want to expand your business because there is a risk of not meeting the deadline.
If you are considering filing a design application in China, it is important to consult with an experienced intellectual property attorney who can guide you through the process and help you protect your rights.
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