The new version of the revised draft of the Patent Examination Guidelines (draft for comments) is expected to solve the GUI design protection dilemma.

On April 4, 2019, the State Intellectual Property Office published the revised draft of the guidelines for patent examination (Draft for comments), which made many amendments to the current guidelines for patent examination. Among them, the major change is the relevant provisions of the graphical user interface (GUI).

The provisions of the current "Patent Examination Guide" on the graphical user interface include: for the product design including the graphical user interface, the overall product design shall be submitted. If the graphical user interface is a dynamic pattern, the applicant should submit at least one state of the overall product design view, and for the remaining states, only the key frame view can be submitted, and the submitted view should be able to uniquely determine the change trend of the animation in the dynamic pattern.

It is precisely because of such provisions, caused a sensation of "GUI patent first case". In May 2016, Beijing Qihoo Technology Co., Ltd. sued Beijing Jiangmin Technology Co., Ltd. to the Beijing Intellectual Property Court. Qihoo Technology Co., Ltd. believed that the GUI design of Jiangmin Technology software interface infringed its patent named "Computer with Graphical User Interface" The patent right, but the Beijing Intellectual Property Court rejected all the plaintiff's claims. The reasons for rejection by the Beijing Intellectual Property Court are mainly in the following two aspects:(1) When there is no explicit recognition rule for GUI design patent infringement, the existing design infringement rules apply, that is, the scope of design patent protection must not only consider Design elements should also consider product elements. Product elements and design elements are based on the content shown in pictures and photos. In the patent involved in Qihoo Technology, what is to be protected is a computer with a graphical user interface. Therefore, when determining the scope of patent protection, the computer should be taken into account, not just the graphical interface. (2) The alleged infringing act refers to the act of the defendant providing the alleged infringing software to the user, instead of selling, manufacturing, promising to sell and importing products of the same or similar category as the patent involved, because the alleged infringing software does not belong to the category of design products. Therefore, even if the user interface of the alleged infringing software is similar or even the same as that of the patent involved, the software still does not fall within the scope of the design patent.

Under the current system, applications for GUI designs generally need to be combined with hardware products to apply for design patents, so now we see that many GUI designs are named "computers with GUI", "mobile phones with GUI", "mobile devices with GUI", "terminals with GUI" and so on. According to the judgment principle of patent infringement, the principle of full coverage and the principle of equivalent infringement, when a design infringes the patent right, it must meet the two conditions of "GUI design" and "matching hardware" at the same time. At present, the main companies applying for GUI design patents are domestic software companies, and there is no matching hardware. Therefore, the possibility of GUI patent infringement is very low. This is also why after Qihoo's "GUI Patent First Case", the second and third cases of GUI design patents have never been revealed. There are no related cases. It is not that there are no products similar to these GUI designs., But the patentee's enthusiasm in active rights protection has dropped significantly.

In the revised draft of the guidelines for Patent examination (draft for soliciting opinions) published on April 4, 2019, the deletion of this provision means that it is no longer necessary to submit design drawings of the overall product when applying for a graphical user interface in the future. Moreover, in the new draft for comments, the definition of the appearance design of the product of the graphical user interface is added. The product appearance design involving the graphical user interface refers to the product design points including the design of the graphical user interface. In terms of product names, the product design name of the graphical user interface should indicate the main purpose of the graphical user interface and the products it is applied to. Generally, there should be keywords with the words "graphical user interface", and the product name of the dynamic graphical user interface should have keywords with the words "dynamic. Such as: "refrigerator with temperature control graphical user interface", "mobile phone weather forecast dynamic graphical user interface". This is also a big difference from the previous GUI design names such as "computer with GUI" and "terminal with GUI.

According to the above modifications, it can be seen that the relationship between the future GUI design patent and the hardware will no longer be so close, and the future GUI design patent can not only protect the product with the graphical user interface, but also protect the product's graphical user interface itself. Such a modification will be more able to protect the legitimate rights and interests of the patentee, so that the GUI design patent to play its due role. However, at present, it is only the draft of the revised draft of the patent examination guide. In the future, the limitation of the protection scope of GUI design patents may have to be decided by litigation.

Article Source:IPRdailyChinese Network (iprdaily.cn)GUIWhere is the road to design patents?