China’s Rise in U.S. Design Patent System

by Dennis Crouch

WIPO administers the WIPO-administered Hague System for the International Registration of Industrial Designs.  In 2015, the US linked its design patent system with Hague — this gives U.S. designers easier access to global design rights; and non-U.S. applicants easier access to the U.S. market.  This week, China announced that it is also joining the system.  Even without being part of Hague, IP offices around the globe have received huge increases in Chinese -origin industrial design applications.  For instance, 55% of global design applications filed in 2020 were by Chinese residents.

The first chart below shows the impact in the U.S. design patent system. For the first time in 2021, most new U.S. design patents originated from outside of the U.S.; with Chinese-origin design patents taking the clear quantitative lead over all other nations.  The second chart shows the rise in design patents (and design patent applications) over the past several years.


15 thoughts on “China’s Rise in U.S. Design Patent System

    1. 5.1

      That article (still) does not segregate the data as you and I have suggested: separate out the international and large multinationals in order to get a more accurate view of “local” innovation.

  1. 4

    As usual, all of the posts have hijacked the story about China using the U.S. design patent system.

    1. 4.1

      Sorry. I would be pleased to have posted my comment about Caltech in a more appropriate forum, but there is none.

    1. 3.1

      Are you referencing the Chinese bloat “carrying” factor responsible for hiding the relative slide in non-Multi-National innovation entities?

  2. 2

    “How I feel about this” is of course legally irrelevant. Yes, it was about time. But the “raised or could have raised” [“IN an inter partes review”] estoppel language of 35 §315(e)(2) in itself was always clear, except for the question of how much prior art search money or effort is required to escape the “could have raised” estoppel. It is also in the reexamination statute. [It did NOT ever “mean that if you knew about the art and did not mention it in your [IPR] petition, it is off the table.”] Also, this estoppel only applies to publications and patents, because those are the only prior art sources that can be raised in either a reexamination or IPR. This Fed. Cir. Caltech v. Broadcom et al decision, inter alia, merely disposed of a prior Fed. Cir. Shaw case creating an exception for one circumstance, which apparently confused some D.C. decisions [which decisions this decision lists]. This new Fed. Cir. Caltech decision disposes of all that with this holding:
    “Thus, the Supreme Court’s later decision in SAS makes clear that Shaw, while perhaps correct at the time in light of our pre SAS interpretation of the statute cannot be sustained under the Supreme Court’s interpretation of related statutory provisions in SAS. The panel here has the authority to overrule Shaw in light of SAS, without en banc action. To be sure, SAS did not explicitly overrule Shaw or address the scope of statutory estoppel under § 315(e)(2). But the reasoning of Shaw rests on the assumption that the Board need not institute on all grounds, an assumption that SAS rejected.” [Note the “perhaps correct” comment on Shaw.]

    1. 2.1

      [T]he “raised or could have raised”… estoppel language of 35 §315(e)(2) in itself was always clear…

      I used to think that it was clear when first I read it. Then the CAFC in Shaw interpreted that language about 180° opposite of the way that seemed natural to me, so maybe it was not as clear as I had thought.

  3. 1

    I am surprised that there is no post yet about Caltech v. Broadcom. That is a big case. Shaw is over-ruled, and the interpretation of 35 U.S.C. §315(e)(2) is now that “raised or could have raised” means that if you knew about the art and did not mention it in your petition, it is off the table.

    This is good. Shaw‘s reading of §315(e)(2) frustrated the purpose of IPRs, which is to provide a faster and cheaper alternative to litigating §§ 102/103, not an additional layer of litigation to be poured on top of the district court proceedings. From now on, if you go the IPR route, you may no longer raise §§ 102/103 arguments in district court based on printed art. This will help restore the IPR system to its originally intended purpose.

    1. 1.1

      Sounds like that frustrates the Efficient Infringers there Greg.

      Are you sure that aligns with returning IPRs to their intended state?

      How does Paul feel about this?

    2. 1.3

      MG. They did say “overrule” with respect to Shaw. How often (if ever) has a Fed. Cir. panel used that word when discussing Fed. Cir. precedent a panel thinks has been abrogated by the Supremes?

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