China Attempts to Utilize Patent to Protect Graphical User Interface for Software

(By You Yunting) In the epic battle of Apple Inc. v. Samsung Electronics Co. starting from 2011, Apple filed its lawsuit against Samsung in the United States, alleged that Samsung infringed several graphical user interface (the “GUI”). If Apple filed its lawsuit against Samsung in China, however, its complaint regarding infringing several GUI may not be filed because at present China has not accepted applications of patent for GUI. Nevertheless, good news comes that China’s governments are changing their attitude on the application for GUI.

When referring to the GUI, many people would always keep in touch it. In all electronic devices with a display screen, such as computers, phones, tablet computers, the GUI can be found in visual widgets and interaction operations within its software, like menu and interface (Note: as for the detailed definition, please refer to the graphical user interface on Wikipedia).

On October 22, 2013, officially website of Legislative Affairs Office of the State Council published the Draft Revision of the Patent Examination Guidelines (the “Draft Revision”)(note: the link is in Chinese) legislated by the State Intellectual Property Office and seek comments from the public. According to the Draft Revision, some GUIs are contained in the scope of protection upon design patent.

According to the 2010 version of Patent Examination Guidelines (the “2010 version”) by the State Intellectual Property Office, the GUI for software is excluded from the design patent protection, particular Item 11, Article 7.4 stipulating “visible images of a device after the device keep normal power”. For example, visible images on watch-face of electronic watches, or visible images on telephones screen or software screen, etc., are executed from any circumstances of granting a design patent.

The Draft version is trying to change the aforementioned article as following: “display images of a device’s visual indicators that irrelevant to human-computer interaction (the “HCI”) or the achievement of device’s function”, for example, electronic screen wallpapers, or images of a device that irrelevant to the HCI or the achievement of a device’s function in the process for on-off, or, PageMaker or game interface of a website that irrelevant to the web’s function are executed from any circumstances of granting a design patent.

According to the State Intellectual Property Office’s introduction document to the Draft version, reasons in favor of said reform are as followed:

1. As the 2010 version provided that “a displayed image of a device after it keeps normal power” is executed from granting a design patent and that images of a device shall be fixed and visible and shall not be sporadic or visible under specific circumstances, therefore, it executed the protection for device appearance design including the GUI from the patent protection, not helpful in stimulating designers’ innovation.

2. In response to the development trend of innovation, for the purpose of stimulating designers’ innovation in the field of the GUI, improving the innovations of electronic information device and strengthening the competitiveness of enterprises, it is necessary to revise the 2010 Version upon the protection for the GUI of products’ design patent.

As an attorney providing services to software industry, we do believe that the reform of the State Intellectual Property Office serves an important role of intellectual property protection upon software design, except for a little late for protection.

Considering that the GUI has never been included in the scope of patent protection, therefore, the software right holder only protects its right through the copyright of computer software. According to the Regulations on Computer Software Protection, the protection for computer software contains computer programs and relevant documents while the interface is not a direct target that the Regulation protected. For such circumstance, it can be protected through the software code concerning the achievement of the interface, or the software interfaces screenshot in the documentation. Ten years ago, when competition between the software industry were far blow adequacy, China’s courts once ruled many cases about copying software interfaces relying on that a two software interfaces completely consistent with each other constituted as copyright infringement.

With the growth of competitiveness in software industry, when copying the GUI, they always make some modification about the interface, and rewrite code to achieve the interface. Under this condition, a small modification to the appearance of GUI would make our copyright protection emphasizing idea-expression dichotomy extremely vulnerable.

Where Patent Examination Guidelines is an administrative regulation of the State Intellectual Property Offices, the period of administrative regulation to revise and promulgate is less than that of legislations by the National People’s Congress. Therefore, we expect that, the newly version of the Patent Examination Guidelines will be effective within a period of one year, and then the GUI may receive patent protection in China.

 Lawyer Contacts

You Yunting86-21-52134918

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