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Latest Changes on the Application of Design Patent with GUI

Xue WANG
Patent Attorney of Design Patent
Mechanical Engineering Department
Linda Liu & Partners

Starting from May 1, 2014, graphical user interface (GUI) has been able to acquire protection of design patent in China. The protection of GUI, which is a part of a device, can certainly actively facilitate the design of GUI. However, China does not have a protecting system for partial design at the legal level at present; under such circumstance, the force of protection for GUI has always been an issue that patent attorneys and applicants are particularly concerned about.

Patent attorneys of Linda Liu & Partners have checked regularly the granting state of GUI-related patents, attended relevant seminars organized by All-China Patent Attorneys Association, and looked up on news and updates on the website of SIPO. After one year, we found out that the examination standard of GUI has been changing quietly, and the force of protection for design patent with essential features in GUI has been strengthened.

SIPO included GUI into the object of protection in the Order No. 68 of the State Intellectual Property Office it issued in March 12, 2014, and added the following relevant contents to the Guidelines for Patent Examination: In respect of the product appearance design including the graphical user interface, the overall product appearance design view should be submitted. For the product appearance design including graphical user interface, if the design of the rest part of the involved patent is a usual design, the graphical user interface will have a more significant impact on the overall visual effect.

The interpretation of SIPO regarding the above contents has changed (according to speeches of SIPO representatives in seminars). For details, please refer to the following table:

	Viewpoint of SIPO before and shortly after the implementation of the Order No. 68	Viewpoint of SIPO recently
Regarding Submitted Views	For the submitted views of GUI, the overall product appearance design view should be submitted, and the view of the product shall show clearly the product other than GUI. For instance, where the product other than GUI is consistent in projection relationship, it does not mean that the product has been clearly shown; for example, where the product incorporating GUI, such as a mobile phone, is only shown by cuboid, and the charge hole and the headphone jack, which are necessary for the use of the product, are not shown in the view, then the view falls into the scope of unclarity.	The submitted view is regulated under two different circumstances. Under the first circumstance, where both GUI and the product incorporating GUI have essential features, sufficient number of views shall be submitted according to the form of submitting views for traditional product irrelevant to GUI. Under the second circumstance, where essential features lie in GUI, it is not compulsively required to submit certain amount of views, but it is not permitted to only submit the view of GUI itself (for clearer expression, GUI itself may be indicated with the reference drawing of using state). At least, the product field that GUI is applied to shall be clearly indicated, and design of GUI and its size, location and proportion in the product shall be clearly shown through the views.
Regarding the Name of Product	Name of product is required to use the style of “interface attribute + product name”, such as “copying machine with GUI” and “mobile phone with interactive interface”; but the name of product shall not be only the content of the involved GUI, only the physical carrier of the GUI, or words that are too generic, such as “operating system interface”, “printing machine” and “electronic equipment with interface”.	Name of product is not required to use the style of “interface attribute + product name” anymore; instead, the name of product is required to include the keyword of “interface”. For example, when the product for which protection is sought is a copying machine with essential features in the interface and the overall product, the name “copying machine with GUI” may be adopted; when the product for which protection is sought is a mobile phone with essential feature in the interface, the name “application programming interface of mobile phone” may be adopted. However, the name of product shall not be only the content of the involved GUI, only the physical carrier of the GUI, or words that are too generic, such as “operating system interface”, “printing machine” and “electronic equipment with interface”.
Regarding the Scope of Protection	Where GUI and product are combined and to be protected as a whole, the head-word of the name of product to be protected as a design patent is required to be “product” rather than “interface”. Although the Guidelines for Patent Examination prescribes that “if the design of the rest part of the involved patent is a usual design, the graphical user interface will have a more significant impact on the overall visual effect”, yet in the determination of similarity, the examiner will not consider interface only without taking product into consideration; instead, he needs to “observe as a whole and judge comprehensively”. Therefore, if an infringing product changes its shape largely, it is apt to evade the infringement liability.	The following is the interpretation regarding determination of the scope of protection: where essential features lie in GUI, design of GUI shown in the views shall apply, and the scope of protection is extended to other products in fields same with or similar to that of the physical product, or those with same way in realizing the interaction and function of the design of GUI.

As shown in the above comparison table, the force of protection for GUI is increasing unceasingly. For designs with essential features only lie in interface, one may apply for a patent by submitting a front view showing the product and the interface, while the submission of other views is not required. Seen from the above aspect, the force of protection for design patents with essential features in interface claimed by the applicant basically reaches the force of protection for “partial design patent” to a certain degree. Therefore, the applicant having this type of GUI design can be relieved and make the application as early as possible.

（2015）