On September 21, 2016, Beijing IP Court hears the first GUI Infringement case in China. The case is between the plaintiff Beijing Qihu Technology (“Qihu”), Qizhi Software (Beijing) Co., Ltd. and the defendant Beijing Jiangmin New Technology Co., Ltd. (“Jiangmin”).
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Qihu and Qizhi are the owners of Chinese design patents with No. ZL201430329167.3 and ZL201430324283.6 with title “computer with graphic user interface”. Qihu and Qizhi alleged Jiangmin infringed their patents and pleaded the court to order the defendant to stop the infringement, eliminate ill effects and pay damages of CNY 10 million (USD 1.5 million). Previously, a petition of staying the case was filed by Jiangmin on the ground that a petition of invalidation has been filed before Patent Review Board and the case is pending. Beijing IP Court decided not to grant the petition, considering the fact that the patentees have filed a Patent Evaluation Report that affirmed the patentability of patents at issue. In the trial, both sides argue on the determination of infringement, prior art and other related issues. The judgment has not been issued yet.
Graphic User Interface, abbreviated as GUI, allows users to interact with electronic devices through graphical icons and other visual elements. GUI has become a patentable subject matter in China since 2014 as set forth in “State Intellectual Property Office’s decision on revising the Patent Examination Guideline (No. 68)”. Before that, any pattern on a product which is only shown when the product is powered on, such as the pattern on an electronic watch dial, the pattern on the screen of a mobile phone, software interface, and so on, is not a patentable subject matter in China. After the issuance of the decision, large number of design patent applications claiming the protection of GUI have been filed.
How to file the application?
Complete product shall be included in the patent application. For GUIs with motional patterns, applicants should provide a view of the ‘main screen’ as the prospective view and additional views of the changed screen to illustrate the motion.
Device containing GUIs must be included
Unlike the United States design patent or Community Design, partial protection is still not available in China and broken lines are not permitted. The complete product that can be made or used independently rather than portion of the product shall be the subject matter of design patent. For the design patent of GUI, the device displaying GUIs shall be included in the drawing or picture of the patent, for example, the displaying device, the cell phone body etc.
What graphic patterns cannot be protected?
As for the subject matter, the decision particular pointed out that the patentable subject matter shall exclude game interface and patterns displayed by the displaying device of a product, which patterns are not relevant to human computer interaction or to the realization of the function of this product, such as wallpaper on an electronic screen, pictures shown during the start or shutdown of the device, or layout of drawings and texts on web pages of websites.
The relationship between GUIs and other part of the product
The decision provided that for the GUI, if the other parts of the GUI design patent at issue are common designs, the GUI has a notable influence on the overall visual effects of the product.
However, the scope of patentable subject matter, the scope of protection, way of calculating damages and other issues is unclear due to lack of related trial cases. The case between Qihu, Qizhi and Jiangmin as the first case on GUI design shall provide judgment standard in these aspects.