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Proposed Change of China’s Design Patent Protection for Graphical User Interfaces (GUI)
According to Item (11), Section 7.4, Chapter 3, Part 1 of the Patent Examination Guidelines currently in effect in China, design patent protection is not allowed for a design related to a pattern shown on a product which is in an electric transmission situation (i.e., a Graphical User Interface (GUI) design,such as a pattern design shown on an electronic watch face, a pattern design shown on the screen of a mobile phone, a software interface, etc.).
The State Intellectual Property Office of China (SIPO) recently announced a proposed amendment to the above-mentioned Patent Examination Guidelines (“Draft Amendment”), under which design patent protection will be expanded to cover Graphical User Interface (GUI) designs. In the announcement, the SIPO invited the general public to provide comments on the Draft Amendment during the period from 22 October to 22 November 2013(please refer to the SIPO’s website for more information: http://www.chinalaw.gov.cn/article/cazjgg/201310/20131000392653.shtml). The main contents of the Draft Amendment are as follows:
1. The statement in the Patent Examination Guidelines currently in effect that prohibits design patent protection for a design related to a pattern shown on a product/device which is in an electric transmission situation will be deleted. Instead,the Draft Amendment states that the following are unpatentable subject matter for a design patent:
“pattern designs shown on products/devices which are irrelevant to the interaction between users and said products /devices, or which are irrelevant to performing the functions of said products/devices”
According to the Draft Amendment, the so-called “design related to a pattern shown on a product/device which is in an electric transmission situation,”as stipulated in the previous (current) Guidelines, mainly refers to Graphical User Interface (GUI) designs, while the so-called “pattern designs shown on products/devices which are irrelevant to the interaction between users and said products/devices, or which are irrelevant to performing the functions of said products/devices” refer to the following:
(1) electrical screens’ background images or screen pictures shown on products/devices during the process of turning on and off, which are irrelevant to the interaction between users and the products/devices or which are irrelevant to performing the functions of the said products/devices; and
(2) arrangements of texts on web pages, and game interfaces thatare irrelevant to the functions performed by the products/devices.
2. The Draft Amendment provides the following requirements with respect to the drawings needed for filing design applicationscovering GUI designs:
(1) An applicant must prepare and submit drawings of the entire product/device in which the location of the GUI design is clearly shown.
(2) If the GUI design refers to dynamic patterns, the applicant must at least submit a view showing one state of the GUI design; for the other states of the GUI design, the applicant may submit a view showing only the key frame of the dynamic patterns; the views must be those by which the variation tendencies of the GUI design can be exclusively determined.
3. The Draft Amendment provides the following requirement with respect to the “brief description”needed when filing a design application for a GUI design:
“An applicant must state in a “brief description” the use of the GUI design and, if necessary, include a description regarding the GUI design (such as the location of the GUI design in the concerned product/device, the manners of interaction, the variation states, etc.).”
4. The Draft Amendment providesfor the following with respect to factors considered when evaluating whether a GUI design is distinctive over prior art:
“For a design comprising a GUI, if the portion other than the GUI portion is conventional, the comparison made between said design and the prior art should place emphasis on the GUI portion as compared to the conventional portion.”
We hope that you find the above information helpful. If you have any suggestions or comments on the Draft Amendment, please feel free to forward them to us. We will convey them to the State Intellectual Property Office of China through Lee and Li-Leaven IPR Agency Ltd. in Beijing (our IP alliance firm in China).