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从“GUI专利第一案”看中国GUI外观设计专利保护之困境

  • Categories:最新消息
  • Author:华讯知识产权
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  • Time of issue:2018-12-21 22:47
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(Summary description)2016年5月,北京奇虎科技有限公司向北京知识产权法院起诉北京江民科技技术有限公司,奇虎科技有限公司认为江民科技软件界面中的GUI设计侵犯了其外观设计专利,所侵犯专利权的专利号为“CN302993266S”,专利名称为“带图形用户界面的电脑”。奇虎科技请求法院判令被告停止侵权,消除影响,并赔偿经济损失500万元。2017年12月25日,北京知识产权法院判决驳回原告全部诉讼请求。北京知识产权法院判决

从“GUI专利第一案”看中国GUI外观设计专利保护之困境

(Summary description)2016年5月,北京奇虎科技有限公司向北京知识产权法院起诉北京江民科技技术有限公司,奇虎科技有限公司认为江民科技软件界面中的GUI设计侵犯了其外观设计专利,所侵犯专利权的专利号为“CN302993266S”,专利名称为“带图形用户界面的电脑”。奇虎科技请求法院判令被告停止侵权,消除影响,并赔偿经济损失500万元。2017年12月25日,北京知识产权法院判决驳回原告全部诉讼请求。北京知识产权法院判决

  • Categories:最新消息
  • Author:华讯知识产权
  • Origin:
  • Time of issue:2018-12-21 22:47
  • Views:
Information

2016年5月,北京奇虎科技有限公司向北京知识产权法院起诉北京江民科技技术有限公司,奇虎科技有限公司认为江民科技软件界面中的GUI设计侵犯了其外观设计专利,所侵犯专利权的专利号为“CN302993266S”,专利名称为“带图形用户界面的电脑”。奇虎科技请求法院判令被告停止侵权,消除影响,并赔偿经济损失500万元。

2017年12月25日,北京知识产权法院判决驳回原告全部诉讼请求。北京知识产权法院判决驳回的理由主要有以下两个方面:首先,北京知识产权法院强调,在针对GUI外观设计专利侵权认定并无明文认定规则的情况下,适用现有的外观设计侵权规则,即外观设计专利保护的范围不仅要考虑设计要素,同时也要考虑产品要素,产品要素和设计要素均以图片和照片中所显示的内容为依据。在奇虎科技的涉案专利中,所要保护的是带有图形用户界面的电脑,并且在专利的图片中,给出了该电脑的六个视图,因此,在确定专利保护的范围时,应当将电脑考虑在内,而不仅仅是关注图形界面。其次,北京知识产权法院认为,被诉侵权行为是被告向用户提供被诉侵权软件的行为,而不是销售、制造、许诺销售、进口与涉案专利相同或类似类别的产品,因为被诉侵权的软件不属于外观设计产品的范畴,因此,即使被诉侵权软件的用户界面与涉案专利的用户界面相类似甚至相同,该软件也不落入专利的保护范围。根据这两项理由,北京知识产权法院驳回了原告的全部诉讼请求。

北京知识产权的判决出来之后,引起轩然大波,很多人提出了不同的意见,主要的争议点包括以下内容:(1)GUI外观专利与普通的外观设计专利存在本质的区别,GUI外观设计一般集中在电子产品类,在满足通电条件后,实现人机交互或者产品功能,在销售过程中,可以通过只销售该GUI设计进行获利,而不必须与产品进行捆绑销售;而普通的外观设计无法产生交互式效果,也没有动态的图案,且外观设计是无法与产品分开单独销售的。因此,在进行解释“包含图形用户界面的产品”应当考虑产品要素,并不是指侵权人既要满足制造、许诺销售、销售、进口同类或近似产品,又要在产品的设计上相同或者近似。相反,专利权人只要证明被控侵权设计与涉案专利设计相同或者相似,法院有理由相信被控侵权的外观设计应用于涉案专利相同或者类似产品上,因此,这样的行为也构成侵权行为。(2)在判决中,法院认定的被控侵权行为是指被告向用户提供被控侵权软件的行为,但是却忽略了被控侵权软件必须安装在电脑产品上的事实;法院将被控侵权软件与产品进行分离,以被控侵权软件不属于外观设计产品范畴,判定该被控侵权软件未落入涉案专利的保护范围,实则缩小了GUI外观专利保护的范围,加大了专利权人在实际中的维权难度。(3)在判定GUI外观设计专利保护范围时,应当主要考虑被控侵权产品与GUI外观设计专利文本中的关键帧视图以及变化状态图是否相同或者实质相同进行判定。即使该GUI外观专利依附于产品,在进行保护范围界定时,也应当不受限于产品本身,而进行实质GUI内容的判定。应当在判定侵权过程中,回归设置GUI外观设计专利的初衷,应当将GUI外观设计不再局限于产品硬件本身,而是将其提升至可以单独作为外观设计保护的客体。否则,GUI外观设计专利权人耗费时间与精力获得专利权,在实际操作中却保护力度很小,势必降低GUI设计申请专利权的积极性,导致形成恶性循环,更加不利于GUI设计的保护。(4)在实际操作中,进行GUI外观设计申请的一般为软件公司,而软件公司很少涉及硬件的制造和销售;同样,一般侵权的公司也为软件公司。如果按照北京知识产权法院的判决,大大降低了GUI设计侵权的可能。

当然,北京知识产权法院的判决也无可厚非。在现行的制度下,GUI外观设计的申请一般需要结合硬件产品才能申请外观设计专利,因此,我们看到的很多GUI外观设计的名称都是“带GUI的电脑”“带GUI的手机”“带GUI的移动设备”“带GUI的终端”等。而根据专利侵权的判定原则,全覆盖原则和等同侵权原则,一项设计侵犯该专利权时,必须同时满足“GUI设计”和“相配合硬件”这两大条件。在没有其他规定出台的基础上,法院想要判定江民科技侵权也是不符合相关法律的规定。

因此,想要解决目前GUI外观设计专利保护的困境,需要专利法相关的规定进行修改,并配套出台外观设计侵权判定规则。除此之外,还需出台相关规定,明确GUI的客体范围,GUI外观设计专利的权利边界以及损害赔偿等规定。相信在不久的将来,GUI外观设计专利能得到更好的保护。

值得一提的是,目前奇虎科技的这篇涉案专利已经被专利复审委员会宣布全部无效,主要的无效理由是,在申请专利之前,奇虎公司已经将该专利的内容公开,因此该专利的内容不具有新颖性和创造性,虽然奇虎科技辩解公开的是内测版本,但是复审委并未采纳该意见。这也提醒那些打算申请专利的公司,专利的内容一定要先申请再公开,否则将使得取得的专利权处于非常不稳定的状态。

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Electronic

Electronic Arts pledges free use for five accessibility patents

Electronic Arts pledges free use for five accessibility patents Recently, Electronic Arts (EA) announced a patent pledge that gives other companies and developers free access to five of its current accessibility-related patents and technology. The company promised not to enforce against any party for infringing any of the listed patents. Instead, EA hopes to encourage “innovation” and build new features that make video games more inclusive on a much larger scale by opening up the patents.  Electronic Arts (EA) is an American video game company founded in 1982. The company owns many popular and famous games, such as The Sims, SimCity, Apex Legends, Madden NFL and FIFA. Each of the games has more than 30 or 50 million sales volume. Significantly, esports involves FIFA and Apex Legends into the event list. Apex Legends has up to 1 billion players, and it is so popular that it has a Switch version. Within the freely available patents, one of which grabs everyone’s attention -- Apex Legends’ ping system (patent No. US 11097189). The ping system in Apex Legends, which excellently allows players to make communication and teamwork quick and easy without hearing or speaking, has been praised both as an impressive alternative to voice chat and as a great accessibility feature for players with a variety of disabilities.  The other patents include the technology widely used in the FIFA and Madden NFL. The innovations can automatically detect and modify colors (patent No. US 10118097 and CN 107694092) and contrast ratios (patent No. US 10878540) to improve gamers’ visibility with colorblindness and low vision. Furthermore, one of the patents relates to personalized sound technology, helping players with hearing issues by modifying or creating music based on their preferences (patent No. US 10790919).   The code of the mentioned technology is published on EA’s GitHub, and it is open to all developers. Thus, the developers can use it or adapt it for their games without spending the costs to research. It is good that EA shares the patents for free use and aims to create an accessibility-increased gaming environment for players. However, it is not “unconditional” to use the listed patents. In the pledge, EA mentioned that it may terminate the promise for a specific party which files a patent infringement lawsuit or other patent proceedings against EA. We can see parts of EV’s ambition behind the announcement—to build a large game developer league and a community of shared interests.     Reference: https://www.ea.com/commitments/positive-play/accessibility-patent-pledge https://iknow.stpi.narl.org.tw/Post/Read.aspx?PostID=14562 https://www.polygon.com/22639469/apex-legends-electronic-arts-patent-pledge-accessibility-developers https://www.theverge.com/2021/8/24/22638535/ea-accessibility-patent-pledge-apex-legends-ping-system https://www.gamesradar.com/ea-secures-a-patent-for-the-apex-legends-ping-system-and-its-giving-it-away-for-free/ https://dotesports.com/apex-legends/news/apex-legends-ping-system-is-now-patent-free-for-accessibility https://www.nintendolife.com/news/2021/08/apex_legends_ping_system_now_patent-free_as_ea_announces_accessibility_pledge Recently, Electronic Arts (EA) announced a patent pledge that gives other companies and developers free access to five of its current accessibility-related patents and technology. The company promised not to enforce against any party for infringing any of the listed patents. Instead, EA hopes to encourage “innovation” and build new features that make video games more inclusive on a much larger scale by opening up the patents.    Electronic Arts (EA) is an American video game company founded in 1982. The company owns many popular and famous games, such as The Sims, SimCity, Apex Legends, Madden NFL and FIFA. Each of the games has more than 30 or 50 million sales volume. Significantly, esports involves FIFA and Apex Legends into the event list. Apex Legends has up to 1 billion players, and it is so popular that it has a Switch version.   Within the freely available patents, one of which grabs everyone’s attention -- Apex Legends’ ping system (patent No. US 11097189). The ping system in Apex Legends, which excellently allows players to make communication and teamwork quick and easy without hearing or speaking, has been praised both as an impressive alternative to voice chat and as a great accessibility feature for players with a variety of disabilities.    The other patents include the technology widely used in the FIFA and Madden NFL. The innovations can automatically detect and modify colors (patent No. US 10118097 and CN 107694092) and contrast ratios (patent No. US 10878540) to improve gamers’ visibility with colorblindness and low vision. Furthermore, one of the patents relates to personalized sound technology, helping players with hearing issues by modifying or creating music based on their preferences (patent No. US 10790919).   The
2021-10-22
The

The forum on "China's Intellectual Property-related Reform Measures and New Trends in Patent Litigation" will be held successfully!

The forum on "China's Intellectual Property-related Reform Measures and New Trends in Patent Litigation" will be held successfully! In response to the call for building a strong country with intellectual property rights, at 2 o'clock in the afternoon of October 21, the forum on "China's reform measures related to intellectual property rights and new trends in patent litigation" will be successfully held in Nanjing Jiangbei New District Industrial Technology Research and Innovation Park. The event was hosted by the Science and Technology Innovation Bureau of Nanjing Jiangbei New Area Management Committee, Nanjing Jiangbei New Area Industrial Technology Research and Innovation Park, Nanjing Intellectual Property Rights Protection Assistance Center Jiangbei New District Center, Nanjing Huaxun Intellectual Property Consultant Co., Ltd., Nanjing Intellectual Property Co-organized by the Protection Center (Nanjing Intellectual Property Rights Protection Assistance Center), Taiwan Pharmaceutical Development Association, and Gene Online. The director of Nanjing Intellectual Property Protection Center, Mou Xiaojian, delivered a speech. Director Mu expressed his warm congratulations on the holding of this event and introduced in detail the new pattern of intellectual property protection in Nanjing. He said: At present, Nanjing has implemented a rights protection assistance network in the municipal area. With full coverage, Nanjing Intellectual Property Protection Center is willing to closely communicate and interact with Nanjing's innovation entities, and provide relevant public welfare services such as rapid pre-review, rapid rights protection, and comprehensive utilization for enterprises in need. In addition, Huang Funan, CEO of Gene Online, was unable to come to congratulate due to the epidemic, and recorded a congratulatory video. In the video, he said: China Innovative Pharmaceuticals has already made many outstanding achievements on the international stage, and these are inseparable from intellectual property rights. The support of the company can also show the importance of intellectual property rights to biotechnology and pharmaceutical companies. This event invites four industry experts to focus on China's reform measures related to intellectual property rights and new trends in patent litigation, discuss with companies and universities, and make arrangements in advance. Dr. Qingchen Hou, general manager of Nanjing Huaxun Intellectual Property Consulting Co., Ltd., introduced the "Guidelines for Building a Powerful Country with Intellectual Property Rights (2021-2035)" and explained his views from four aspects: background, strategic layout, overall requirements, and organizational guarantees. . Subsequently, a detailed analysis of China's patent linkage system was carried out, and compared with the same types of cases at home and abroad, questions were raised: Why should we reward the first person who successfully challenged patents? Not the first person to file a P4 application? And have a series of discussions with you. Director Jiang Haijun of the Intellectual Property Protection Legal Committee of the Nanjing Lawyers Association gave a speech on three points: the problems after the amendment of the patent law, the enforceability of the amount of compensation, and the legal conflicts related to service inventions. Regarding the patent right evaluation report, he emphasized that the patentee, interested party or accused infringer can also proactively issue a patent right evaluation report. "Patent is a work of art that combines technology and law" is a message shared by Mr. Feng Tao from Jiangsu Junbo Law Firm at this event. Mr. Feng analyzes the big data of Chinese patent litigation cases through graphs and examples. Explore. The last topic of the event was shared by Guo Huangying, Intellectual Property Manager of Nanjing Huaxun Intellectual Property Agency (General Partnership)-China's Patent Infringement Judgment Principles and New Developments. Manager Guo explained to everyone the principles of patent infringement judgment and the necessity of patent infringement search and analysis before producing and selling products. In the intellectual property industry, ECCOM has been providing high-quality and professional comprehensive intellectual property services to enterprises and universities one step at a time. It also hopes that under the leadership of the state and the government, it will contribute to the building of a strong intellectual property nation in China. Make a contribution.
2021-10-22
Types

Types of patents that are easily overlooked- Design Patent

Types of patents that are easily overlooked- Design Patent In recent years, as the public’s awareness of intellectual property has increased, people have begun to consciously use the patent law to protect their intellectual property rights. However, in the process of implementation, they often only focus on invention patent and utility model patent, and tend to ignore the protection of design patent. Recently, Midea sued Haotaitai for two models of CXW-300-D998 and CXW-300-D908 Haotaitai brand range hoods In the case of suspected infringement of its design patent (patent number: ZL201930621598.X), the Guangzhou Intellectual Property Court made a first-instance judgment after hearing that it determined that the two products of Haotaitai constituted infringement, and ordered it to immediately stop the infringement and compensate Midea, The company's economic losses and reasonable expenses totaled 360,000 yuan. In fact, appearance infringement cases have occurred from time to time before, such as: "Molly" blind box design patent case, "Siemens" switch design patent infringement dispute case received a compensation of 6 million yuan, three Casio watch design patents were infringed Received a compensation of 8.8 million yuan and so on. The reason why people ignore the protection of design patents, in the final analysis, is that they have insufficient knowledge of design patents. Today, let's take a look at what is protected by design patents and what rights protections can we apply for? Design patent definition: Article 2 of the "Patent Law", design patent, refers to a new design that is aesthetically pleasing and suitable for industrial applications based on the shape, pattern, or combination of products, and the combination of color, shape, and pattern. Protected range: The shape of the product; the pattern of the product; the shape and pattern of the product; the shape and color of the product; the pattern and color of the product; the shape, pattern and color of the product. Protection period: The term of protection for design patent rights is 15 years, calculated from the date of filing. What are the conditions for applying for a design patent? The design should be aesthetically pleasing Appearance patents should be suitable for industrial applications The design patent application should be novel The design patent application should be inventiveness What are the advantages and functions of design patents? Protect the rights and interests of enterprises in product designs and fight against infringements in market competition. To enhance brand value, the quality and quantity of patents are the embodiment of the company's innovation ability and core competitiveness. Receive consumer recognition. If a company's new product appearance is filed for a patent in a timely manner, its appearance design will enjoy the exclusive right. Nowadays, consumers often choose products with trendy and beautiful appearance when buying their products. Applying for a design patent is a necessary condition for applying for a high-tech enterprise.
2021-09-26
Colopl

Colopl Settles Patent Infringement Lawsuit with Nintendo by Paying $30 Million

Colopl Settles Patent Infringement Lawsuit with Nintendo by Paying $30 Million   This August, Nintendo and a game developer Colopl announced that they have settled for patent infringement regarding White Cat Project (Shironeko Project in Japanese), a smartphone game developed by Colopl. Although both companies did not publicly share exact details of the settlement, at least it is sure that Colopl agreed to pay 3.3 billion yen (about US$30.2 million) as the settlement fee for the proceedings, including the future license of Nintendo's patents.    How did the battle begin?  Being developed and published by a Japanese game developer, Colopl, White Cat Project is a free-to-play action role-playing game for Android and iOS systems. The mobile game was launched in July 2014 as well as got a television anime adaptation in 2020. It is incredibly popular to have more than 50 million downloads. Furthermore, the game is set to receive a Switch version titled "Shironeko New Project".    In September 2016, Nintendo noted the Colopl's game and considered that the game had infringed on several of Nintendo's technology patents. The two companies communicated with each other for over a year; however, Nintendo did not accept the explanations from Colopl, and Nintendo filed a lawsuit against Colopl at the beginning of 2018.    Nintendo claimed that Colopl infringed 6 of its patents. These patents protect touch-screen joystick functionality (patent no. JP3734820), multiplayer connectivity (patent no. JP5595991, JP6271692), confirmation screens in sleep mode (patent no. JP4010533), character attacks based on touch input locations (patent no. JP4262217), and a shadow effect placed on characters hidden behind the game geometry (patent no. JP3637031).   These patents almost cover various ways of game technology, especially the patent  JP5595991 and JP6271692. Their patent family is wide-reaching, and many divisional applications of the family are pending in Japan. They protect a communication game system and its related devices. It is not easy to detect the patent's existence and boundary since this kind of hardcore technique is so common in the gaming field and our daily lives.     The five-year patent war has been settled.  After a five-year dispute, the situation appeared to turn in Nintendo's favor as the Switch maker increased its monetary demands, which convinced Colopl to strike a deal that lets it use the disputed patents. Furthermore, a Switch version of White Cat Project remains in the works at Colopl.    With the extraordinary losses of Colopl, the legal battle between the two companies came to an end.  
2021-09-09
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