On The Determination Of The Design Patent Infringement Upon Graphical User Interface

As the fourth time of revision draft of Patent Law being published,in the aspect of design,experts and scholars suggest that we should establish partial appearance design system,extend protection period to 15 years and stipulate designs domestic priority,which will undoubtedly provide timely help for protection of graphical user interface design patent.However graphical user interface design patent infringement determination still faces severe challenges.For example,how should we implement establish partial appearance design system? Whether the traditional design patent infringement determination standard apply to graphical user interface design patent infringement determination? And so on.However,these problems haven’t been solved in revision draft of Patent Law.As a specific design patent,there are many differences on infringement between graphical user interface design patent and traditional design patent,concluding the subject and standard of infringement.In judicial practice,there are mainly three disputes in the infringement determination of the graphical user interface design patent.Firstly,in terms of protection,whether should we persevere in taking similar product category as precondition of infringement determination of the graphical user interface;secondly,how should we define the knowledge and the level of skill when we infringe judges from the perspective of “general consumers”;thirdly,in the aspect of infringement criterial,there are some drawbacks adopting “overall comparison criteria”.These disputes are the key points which the thesis will analyze.Seeing the whole world’s provision of law,most of the countries have affirmed the legal status of graphical user interface in design patent,not excepting China.Not only does it come close to the worldwide standards,but also promote the development of the current industry.However,owing to the characteristics of graphical user interface,there are many cases of infringement in judicial practice.Moreover,our law is not sufficiently mature to protect graphical user interface,there are many details needed to improve.Therefore,this thesis is trying to give some suggestions for the infringement determination of the graphical user interface design.This thesis consists of four parts:The first part is the comprehensive introduction of the graphical user interface.Firstly,it discusses define,development and specificity of the graphical user interface.Secondly it combs the currently relevant legal provision about the graphical user interface in China.The second part mainly summarizes the difficulties of the graphical user interface design patent infringement,mainly conclude:(1)China’s Patent law makes similar product as precondition of infringement which is bad for the full protection of graphical user interface;(2)the content of "general consumer" is not clear;(3)the absence of part of design patent;(4)China’s “coverall comparison criteria” has its drawbacks in graphical user interface design patent infringement determination.The third part is the comparative study.In this part,in order to provide a clear guidance for the infringement determination of graphical user interface in China,the author selects the United States,Japan and the European Union whose graphical user interface design patent develops well to analysis deeply legal provision and judicial practice experience about the protection scope,the infringement judges and the infringement judge standardsThe fourth part is suggestions about the existing problems which are discussed in second part.In this part,the author puts forward some ideas for the infringement determination of graphical user interface in China based on foreign experience.First,we should expanse protection scope of graphical user interface reasonably;second,we should clear the content of the infringement judge;finally,we should establish partial appearance design system and adopt Innovation Standard as the infringement judge standards of the infringement determination of graphical user interface.