The State Intellectual Property Office (SIPO) issued a revised Examination Guideline with an effective date of May 1, 2014, removing the exclusion of graphical user interfaces (GUIs) from obtaining design patents.
Previously, the guidelines specifically exclude patterns shown when the product, such as a mobile phone, electronic watch or software interface, is switched on. Furthermore, the pattern is required to be permanent and visible at all times.
With the removal of the above-related sections of the guidelines, the good news for software developers and user interface designers is that GUIs may now be protected via design patents in China.
However, there are certain limitations as to what and how the GUIs may be protected. For example:
- A pattern that is not relevant to human-computer interaction;
- A pattern that is not relevant to the function of the product which the pattern is to be displayed;
are not protectable by design patents. Specifically, the guidelines exclude wallpaper on an electronic screen, pattern shown during start and shutdown of a device and the layout of a website.
When filing a design patent application for a GUI in China, drawings showing the complete product that includes the GUI need to be submitted. Furthermore, where the GUI is animated, then multiple views of the product showing the GUI in different states should be submitted, so that a viewer can determine the trend of change of the animation of the dynamic designs.
A brief explanation specifying the use of the GUI, the location of the GUI on the product, ways of human-computer interaction and the different GUI states may also be required when filing the application.
Amendments are also made to the guidelines to specify that during invalidation proceedings, where other parts of the design, the design being a product that includes a GUI, are common designs, then the GUI has significant influence on the overall impression of the design.
In summary, although design patent protection has been broadened to include GUIs for products such as mobile phones and tablets, it is still not possible to protect a GUI independent of the product. Furthermore, patterns that are not involved in human-computer interaction are excluded.
Such requirements for design patents in China are still more restrictive than equivalent protections in other jurisdictions. For example, in the UK or Europe, design registration can be sought to the GUI alone, independent of the product, and there are no requirements or restrictions relating to the interaction between the GUI and the product that includes the GUI, or between a user and the GUI.
There is uncertainty as to whether a Chinese design patent application for product that includes a GUI can validly claim priority to a UK or European design registration, or vice versa, if the European design contains the GUI alone. If the applicant does not wish to limit his UK or European application to a specific product that includes the GUI, then it may be necessary to file the applications on the same day in order to obtain the same date of filing in both jurisdictions.
Despite the relative lenient requirements relating to GUI design registrations in the UK or Europe, software developers and programmers looking to protect their protect their product tend to concentrate their efforts into obtaining patents to the software, sometimes overlooking the benefits of obtaining design protections to the GUIs. Design registrations in the UK and Europe are cost effective and a relatively quick process. A design registration in the UK or Europe can be obtained in a matter of weeks, rather than years, as is in the case with patenting.
There is a clear trend of Chinese companies aggressively protecting their Intellectual Property in China in recent years. Companies looking to export to or manufacture in China should consider design patent protection to prevent others from copying their GUIs in China.
Furthermore, as computer software is notoriously difficult to patent in the UK or Europe, there are clear benefits in obtaining design registrations to the GUIs relating to the software in these jurisdictions. If you would like more information regarding designs, then please contact one of the attorneys at Albright Patents LLP for more advice.
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