Optimization Of The Protection For Graphical User Interface

There are many discussions on the protection of graphical user interface(“GUI”) because of its specialty. Before the Patent Examination Guideline was amended, the law does not provide a special protection for this new intellectual property subject. And the discussions regarding the protection model of GUI have never stopped in academic and practical circle. Some scholars think that GUI should be protected by copyright law while some believe GUI could be protected as design patent. In practice, some companies filed lawsuits in the claim of copyright while some claimed the infringement of trademark. Anti-Unfair Competition is also one of the claims. All of these arisen from the vague definition of GUI. Moreover, GUI was excluded from design patent according to the Patent Examination Guideline amended in 2010. In that circumstance, the owners of GUI could only seek relief from copyright law, trademark law or anti-unfair competition law.In the latest amended Patent Examination Guideline, GUI could be protected as design patent from May 1, 2014, which provides a clear solution for the protection of GUI. This means the Chinese law could protect GUI from the design patent. However, many problems may arise after a new subject is just included. Although GUI could be protected as design patent in China according to the amended Patent Examination Guideline, there are some limitations of the patent applications of GUI and some vague explanations for some problems, such as the scope of protection, the guideline for reviewing the patent applications of GUI, the rules for determining the functionality and ornamental of GUI, and the rules for determining the infringement of GUI. After GUI became the subject of design patent form May 1, 2014, many GUIs have been granted design patent. However, there are also a lot of problems of the granted patent designs. For example, the same design needs to be applied for patents on different products. Some granted design patents were unable to reflect the value of GUI etc.Since GUI is protected by design patent, the issue on protection of partial design patent should be unavoidably discussed. China does not provide a complete protection of the partial design patent, therefor the author suggests to introducing the partial design patent system for the improvement of protection of GUI.The rationality of introducing the partial design patents would be proved by three aspects.In Part I, this article will discuss the legal principle of introducing the partial design patent. The author will discuss some basic concepts of legal philosophy and analyze the value of partial design patent to the order and justice from the prospective of Bodenheimer’s philosophy of law theory. This article will focus on whether the partially design patent system is in accordance with the rule of order and justice. The author believes that introducing the design patent system satisfies the standard of order and justice. Secondly, this part will analyze from the prospective of law economics. The author will discuss the interests and development from introducing the system of partial design patent. This part will focus on the rationality and feasibility from the legal principle.In Part II, the author discusses the influence of introducing the system of partial design patent. As mentioned above, many problems arise from protecting GUI as design patent. This article will discuss whether introducing the system of partial design patent will solve these problems. The author insists that these problems will be resolved by the system of partial design patent.In Part III, through examination of similar ex-territorial legislation to provide an angle for reference. In today’s world, the protection of design patent is categorized into three patterns, and America shares the same pattern with China by include the patent design protection into IP protection, meanwhile, America is also one of the countries that first introduce partial patent design policy into the protection of patent design. Thus, the partial design patent system and its progress in the history are relatively meaningful to China. In addition, the partial design patent system and the protection system for GUI are mutual supporting and in concert. Their protection practices would provide many meaningful references for us. Therefore, the author chooses America as the major target country for ex-territorial researches. Through the research of historical progress of America’s the partial design patent system and the analysis of the support brought by the partial design patent system to GUI,the author concludes that the introduction of partial design patents is imperative.Though demonstrate the positive effects of introducing the partial design patent system, the author states that such introduction should be made in time to improve the protection of GUI and the patent design. The author suggests that to make such introduction, revisions to the current IP Law’s prescription about patent designs and the deletion of certain articles in Patent Examining Guide should be made, through which, a more comprehensive protection for GUI could be achieved.