The Partial Design's Legal Protection Of Graphical User Interface

Since nineteen seventies,the graphical user interface has been developed rapidly with the development of computer technology,and its legal protection has gradually changed because of the industry's interest need.In 2014,China revised the patent review guidelines,and then the graphical user interface can be firstly applied for the design patent.On April 1st,2017,the newly implemented patent review guidelines did not make any changes to the graphical user interface design patent.In China,the patent law and the patent examination guidelines in2014 become the basis legal for the graphical user interface to obtain the design patent.The graphical user interface is a part of the product,it is a large different between overall design patent and the graphical user interface.There is no partial design regime in Chinese patent law now,it needs to analyze and demonstrate the legal protection of partial design on the graphical user interface design.This article is based on the foundation theory of graphical user interface and partial design,for the future of the legislative and judicial practice,comprehensively discusses the partial design's legal protection of graphical user interface.Except the introduction,this article is divided in seven chapters,a total of one hundred and seventies thousand words.The first chapter defines the graphical user interface and local appearance design.Graphical user interface is the interface between the system and the user.As the interface of human-computer interaction,the graphical user interface is born and developed because of computer technology.Graphical user interface is usually designed by the way of a computer metaphor,so it can achieve a good user experience.Although China's current patent law has no partial design regime,the draft of the revised Patent Law has added a provision of the partial design,which is composed of shape,pattern,color and combined with two dimensional or three dimensional appearance or decoration design for partial production,and can not be sold separately and not divided.Under the background of economic globalization,it has been gradually integrated of the system,culture and values of each country,and the legal protection of the partial design on graphical user interface has broken into our country's intellectual property law.The second chapter analyzes the reasonability of legal protection about graphical user interface.The graphical user interface is a result of technology,and it can transmitinformation by a concise,intuitive and convenient way in the "world image era".Excellent graphical user interface can attract the attention of consumers with its good user experience,and promote the product sales.In order to promote product sales,gain competitive advantage,businesses are creating a graphical user interface to attract consumers,and then the partial design's legal protection of the graphical user interface has appeared and been strengthened following with industry interest.Graphical user interface concentrates intellectual work from a large number of designers,and embodies their personality will.In order to encourage creating,and inspire more designers to design more and richer graphical user interfaces,it is reasonable to protect the graphical user interface.The third chapter elaborates the superiority of the graphical user interface legal protect by partial design patent.At first Graphical user interface is protected by copyright,but copyright protect should abstract ideas,eliminate the unprotected elements,and it just protects the individual elements,so copyright protection is very limited.The graphical user interface is designed by the way of computer the metaphor,which generally refers to common name of goods or services,or can not distinguish the resource of goods or services,so it is also limited of trademark to protect graphical user interface.As for the invention and utility patent protection,it is easy that the infringer have no any responsibility when the interface is same but technical characteristics is different,while it is different between graphical user interface and overall design,so the traditional intellectual property rights can not adequately protect the graphical user interface.On the contrary,the partial design and graphical user interface can achieve the same essence,the partial design protect can reduce the difficulty of design authorization,expand the scope of protection,and maximize social benefits,thus it has the superiority of partial design to protect graphical user interface.The fourth chapter describes the particularity of the authorization requirements of the graphical user interface partial design.The design is the overall decorative feature,decorative,novelty,distinctiveness is the substantive element of the graphical user interface partial design,decoration is the natural essence of the graphical user interface partial design,what's more,novelty and distinctiveness is the necessary requirement of the graphical user interface partial design.In addition to the substantial requirements,the graphical user interface needs to meet its special form requirement in order to obtain partial design right.Different name and the special applying way of solid and broken lines and others determine authorization of the graphical user interface partial design and its scope of exclusive right.If there is a conflictbetween substantial requirements and formal requirements,as long as there is no violation of substantive requirements,the applicant can debate with examiners or judges,it needs developing space of graphical user interface in game practice.The fifth chapter discusses the particularity of the product of the partial design on graphical user interface.In the traditional physical world,the design must be consistent with the requirement of the product.The graphical user interface makes the design into the Internet world,and there is a challenge for the product on the graphical user interface design.The United States based on pragmatic considerations,flexibly defines the product of partial design on graphical user interface.The European Union neglects the design product because design is similar to the copyright.Japan strictly restricts the definition of product about the graphical user interface design,result into repeatedly modifying the law,and expanding the product scope.South Korea benefited from the loose products,whose graphical user interface is relatively rich.The product is chose by parties in Taiwan area,graphical user interface partial design products can be a display,can also be an entity of goods.Based on the reference of foreign law,the product of the design should have the independent use value,can be visualized,and can be used into the industry.At the present stage,the product of the partial design of the graphical user interface in our country should be the display,such as the display screen and the display panel,besides the product which parties choose.The sixth chapter discusses the judicial protect of the graphical user interface partial design patent.The graphical user interface is the core of judging infringement,rather than the product.Both of subject of authorization judgment and infringement judgment are common consumer,when judging the infringement of graphical user interface partial design,judges should adhere to the principle of overall observation and comprehensive judgment,and the same time should pay attention to any element which may impair the overall visual effect on graphical user interface.After judging the infringement,in accordance with the essence of the design and its attractiveness effect,the infringer shall be responsible for damage with all the profit of the product.However,in accordance with the definition of product on graphical user interface partial design and the judicial tradition about discretionary compensation,it is impossible to adopt the regulation in China,the compensation should still be reasonable to determine according to its value and profit and so on.The seventh chapter describes the legislative advice of the partial design protection of graphical user interface.First of all,the design should be separated from the patent law,it isnecessary to carry out a independent design law,and increase partial design regime,it is appropriate to protect the graphical user interface by partial design exclusive right.Secondly,we should adhere to the industry drive idea to examine and authorize the partial design of graphical user interface,pay attention to industry interest,delete the regulation which the flat print can not be protected by design,abolish the authorization requirement of non conflict.With the improvement of the level of design creation,even the product of graphical user interface partial design can be virtual,so the product will not be premise of authorization and infringement judgment.Finally,we should keep the interest balance between protection and restriction of right,remove the limit of infringing action of the producing and operating purpose,increase use right,prolong protect time;at the same time,restrict the partial design right of graphical user interface,functional design should not be protected,personal use,prior use,temporary entry and so on.