Graphical User Interface is Now Patentable under Design Patent in China (effective as of May 1, 2014)

As of May 1, 2014, Chinese new rule that a product with Graphic User Interface is patentable under a design patent enters into force. This new rule comes from the amended Guidelines for Patent Examination as promulgated by SIPO on March 12, 2014.

Graphic User Interface (GUI) refers to user interface displayed in a graphic on a display device of a product, which is normally applied in the fields of computer, mobile phone, electrical equipment, instrument, meter, industrial plant, electrical musical instrument, etc.

Herein, highlights on this issue are summarized, from which, we hope, you would benefit for your design protection strategy in China.

New rule

The new rule revokes such previous provisions that “the pattern shown when the product is electrified” is unpatentable and “the pattern of a product shall be fixed and visible, and not flickering or visible only under the specific conditions.”

Pursuant to the new rule, a design of a product with graphic user interface is a patanteable subject matter. So an applicant can consider seeking design patent protection for “the pattern shown when the product is electrified, such as the pattern on the electronic watch dial, the pattern on the screen of the mobile phone, software interface, and so on.”

However, not all patterns shown when the product is electrified can be acceptable. 

Game interfaces and such patterns displayed by the product display device that are not related to the human-machine interaction or the realization of product function are not patentable, for example electronic screen wallpapers, startup and shutdown screens and image-text layouts of web pages. 

The human-machine interaction means a process in which the user interacts with the machine by selecting a graphic (such as the window, icon, button, etc.) displayed on the graphic user interface of the machine, for example by mouse, direct touch, etc., for the different tasks of gathering and producing information.

User interface displayed in graphic forms in a display device of a product is patentable on the condition that it involves the human-machine interaction and realizes a function of the product. 

Please be advised that graphic user interface per se is not patentable subject matter. But a product with graphic user interface that involves the human-machine interaction and realizes a function of the product is the patentable subject matter. 

In other words, you can apply for design patent with respect to only a combination of the product and graphic user interface but not a graphic user interface per se. After granted the scope of patent will be thecombination of the design of the product and graphic user interface.

Filing requirements

For a design patent application for a product design with graphical user interface, the application documents should include six-side views of the entire product design with graphical user interface. 

If the graphical user interface is of dynamic pattern, there should include six-side views of the entire product design with graphical user interface in at least one state. And the view of the key frames of graphical user interface for the rest states of the dynamic pattern could be included in order to solely determine the variation trend of the animation in the dynamic pattern.

In the brief specification, in addition to the specification for the product, the use of the graphical user interface, the area of the graphical user interface in the product, the human-machine interaction and states of variation (and so on if necessary) should also be indicated.

Distinctiveness

The new rule also adds a factor for determining distinctiveness of a design for a design patent invalidation case: 

for the product design with graphical user interface, if the rest parts of the design are conventional design, the graphical user interface has distinctive impact on the overall visual effect.

The rule recognizes that a graphical user interface can bring distinctiveness to a design of a product.

Filing strategy due to new rule

An applicant is suggested to file a design application for a product with GUI as earlier as possible and consider a proper filing strategy. 

Where the product has a conventional design and GUI has distinctive design, the applicant may file a design application for this product with the GUI.

Where the product has distinctive design and GUI also has distinctive design, the applicant may consider various combinations thereof for its application(s), for example:

(1) filing a design application for this product without the GUI for seeking protection of the distinctive product design per se;

(2) filing a application for this product with this GUI for seeking protection of both the distinctive product design and distinctive GUI design; 

(3) filing one or more design applications for this GUI with one or more conventional product designs for seeking protection of the combination of the distinctive GUI design with one or more conventional product designs. 

Since a GUI design should be combined with a product for seeking a design patent and the scope of the patent also covers the combination of the GUI and product, it is important to have a proper filing strategy for a design application with GUI in order to have good scope for future enforcement.

This new rule that welcomes GUI as patentable matter for design patent may give rise to an alternative protection for technologies related to graphic user interface.

Basic information about design patent in China

Design, pursuant to the Chinese Patent Law, means any new design of the shape, the pattern, or their combination, or the combination of the color with shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application.

In prosecution, examiners generally focus on formality issues and obvious novelty issue, and may conduct search only for some cases with obvious defects. 

Generally, it takes about six to nine months, for obtaining patent certificate from filing a design application. 

The duration of patent for design patent is ten years, counted from the date of filing.

In a word, GUI as patentable matter for design is good news for individual and enterprises working in related industry. For those who might be interested in filing such applications, it will be better to act quickly to get a preemptive position.

The above information is only for your reference. Should you need more information or any assistance or have any further questions please do not hesitate to contact us. We would be happy to assist.