China has taken a proactive stance in reforming its intellectual property (IP) laws in recent years.  New Zealand (NZ) software developers and user interface designers should note that graphical user interfaces (GUIs) may now be protected via design patents in China. Given the trend of IP protection in China, it is likely that Chinese companies will also try to protect their GUIs aggressively in China. NZ exporters looking to take their software products to market in China should consider design patent protection to prevent others from copying their GUIs in China.

Background on graphical user interfaces

User interfaces includes both touch and non-touch interfaces. These may include visible images on all types of electronic devices with a display screen, such as computers, phones, tablet computers and wearable devices. They can be found in visual widgets and interaction operations within its software, like menu and interface.

Previously GUIs were explicitly excluded from design patent protection in China. Apple, as an example, was not able to prevent Samsung using a copy of the iPhone GUI.

However in an effort to align IP laws with foreign countries and also in recognition of the competitive advantage that GUIs may provide, the Chinese patent office has revised the laws to remove electrified screen designs from excluded matter for design patent protection.  This change came into effect on 1 May 2014.

What exactly is protectable?

Design patents in China must depict the whole product that encompasses the GUI. For example, any drawings or photographs filed with the application must also show the product such as a tablet computer or smart phone on which the GUI is visible. Animated GUI is also protectable, but the drawings must show the GUI in different changed stages of animation.

Generalising the device on which the GUI is displayed is not possible. The drawings must show a specific product (ie, a smartphone, tablet or PC) on which it is to be displayed. Therefore a Chinese patent design protection for GUI design would be limited (tied) to the specific product that is featured on the drawings and photographs filed with the application. If the GUI can be used on different devices, we suggest filing several design applications to cover multiple devices-design patents in China are not expensive.

A GUI patent application also needs to include an explanation of the design including the human-machine interaction and the position and use of the GUI on the product.

The new provisions exclude protection for GUI designs that are not directed to a product's function or human-computer interaction. For example,background wallpaper on an electronic screen, turn-on/turn-off lock screens and graphical and text layout of a webpage does not require human-computer interaction and will not be protectable. Graphical and text layout of a webpage, game interfaces after entering the game (not the GUI displayed on a gaming device or an icon for the game) also cannot be protected in China.

Advice for app developers and New Zealand exporters

The new provisions that allow GUIs to be protected by design patents is great for app developers. It's an inexpensive and effective way to prevent others copying both the touch and non-touch user interface of apps or games.

If you're planning to take software products into the China market, we recommend considering design patent protection of their GUIs.