Brief introduction of GUI design patent protection 04.27.2020
There are two kinds of views in relation to the object of the GUI design patent protection. One view says that the object of the GUI design patent protection shall be a product with a GUI design, and the other view says that the object of the GUI design patent protection shall be is the GUI design itself.
Since the GUI design patent is one kind of the design patents, the GUI design patent must comply with the general provisions on design patent in the Patent Law of the People’s Republic of China. The definition of design patent in the Patent Law of the People’s Republic of China is: “new design that is aesthetically pleasing and suitable for industrial applications of the product’s shape, pattern, or combination of both, and the combination of colour, shape and pattern.” The definition clearly provides that the object protected by the design patent is not the product itself, but the new design of key components of the product, such as its shape, pattern and colour. The product is only the carrier of the design. Carrier and object should not be mixed up. According to current law, the object of GUI design patent protection can only be the new design of the product without exception.
Although the object protected by the design patent is not the product itself, and the product is only the carrier of the design, but the design cannot exist independent of its carrier. This means when determining the scope of protection of a design patent, the design cannot be taken out of the product defined by the patent document, and grant protection to the product. As long as the product uses an identical or similar design, it falls into the scope of protection of the design patent.
The relationship between the scope of protection of the design patent and the product is “based on the design of the product”, not “based on the design”. The words “the product” clearly show the close relationship between the design and the product. Of course, the understanding of “the product” is not limited to identical products. If the identical or similar design is used on similar products, it should still be considered to fall within the scope of protection of the design patent.
The purpose of the application for a GUI design patent is mainly to protect the graphical user interface. However, in order to meet the authorization conditions, it is necessary to combine the graphical user interface with specific hardware, then the scope of protection will be greatly reduced. Since the hardware part is also included, although changes in the shape, pattern, and colour of the hardware part do not affect the GUI design, changes in the hardware part will affect the appearance of the product.
Many scholars suggest that even in the GUI design patents that use specific devices as the protected object, when determining whether they are identical or similar, the graphical user interface should still be considered as the most important consideration. The hardware part should weigh little in the consideration, especially for the hardware part which belongs to the existing design, so that it should not be used as part of the judgment on infringement of the GUI design patent.
In order to prevent GUI design patents from becoming “rights on paper”, the above suggestions are quite reasonable. However, it is more urgent to introduce by legislation a partial design protection system for the GUI design. The GUI design patent protection without partial design system is obviously insufficient. And the adverse impact on design stemmed from the lack of partial design system is not limited to the field of GUI design.
Benny Kong & Tsai
27 Apr 2020