Research On Substantial Authorization Conditions Of GUI Design Patent

On Mar.17, 2014, the State Intellectual Property Office released the 68 th Decree,deciding to implement the modified "Patent Examination Guidelines" from May 1.This modification clearly recognized Graphical User Interface(GUI) as the object of design patents, specifically involving five modifications. However, the modification did not stipulate the scope of protection, substantial authorization conditions, review standards or other such regulations of GUI Design Patent, which will lead to many problems during practice as GUI design is special. As the standards of authorization(when taking substantive examination during authorizing), confirming and invalidation, substantial authorization conditions have a decisive role to patents and their stability. And the substantial authorization conditions of GUI design patent are special because of the particularity of GUI. So this thesis researches on substantial authorization conditions of GUI design patent, looking for improving our patent system. As a pioneer of the GUI design patent protection, US GUI Design Patent System has developed to be a sound system relatively. It has specially provided substantial authorization conditions of GUI design patent, as well as provided special provisions for Changeable GUI. What’s more, there are many cases for reference. So this thesis takes American system to be the reference and comparative to study the GUI Design Patent System.This thesis first analyses the experiences of America and the deficiencies of our GUI design patent system. Then this thesis deeply researches substantial authorizationconditions of US GUI design patent, including the “article of manufacture”requirement, the non-functional requirement and the ornamental requirement. Further,this thesis separately researches special authorization conditions of Changeable GUI.On the basis of analysis of inadequate of Chinese GUI Design System, it makes suggestions to improve our GUI design patents by comparing and referencing the US system and combining with China’s actual situation.Hence, this thesis is consisting of five chapters:Chapter one analyses lessons from the practice of US GUI design patent system and deficiencies of the China system. On the basis of defining the meaning of GUI, it analyses the barriers to authorize to GUI designs with respect to substantive authorization conditions by viewing the development process of the American system.It summarizes that we need to particularly explain the “article of manufacture”requirement, together exam the non-functional requirement and the ornamental requirement, and provide special provisions for the changeable GUI design patent.Then, this Chapter summarizes our system’s deficiencies by analyzing modifications of "Patent Examination Guidelines". It states there is only 1 modification of the 5modifications together involves substantial authorization conditions in invalidating procedure, which still does not make provisions for substantial authorization conditions. It will lead to several questions in our system, such as the provisions are incomplete, the structure is unreasonable, the Partial Design is lack and so on. This part is the basis of the whole thesis’ research.Chapter two, Chapter three and Chapter four separately deeply researches substantial authorization conditions of US GUI design patent, including the “article of manufacture” requirement, the non-functional requirement and the ornamental requirement, and special authorization conditions for Changeable GUI design patents.The research approach is raising the questions firstly, then negating the doubts, and introducing related provisions finally. Specifically, it states the obstacles to GUI to be protected by design patent, then demonstrates GUI meets the authorization conditions,and introduces related US provisions.Chapter two analyses the “article of manufacture” requirement. It initially summarizes the doubts to GUI relating to this requirement, including what the vehicle is, whether the vehicle belongs to “article of manufacture”, whether the indefinite relationship between GUI and its vehicle meets this requirement, and so on. For these,this chapter considers electronic display screen to be “article of manufacture” exceptfor hardware products by referencing CCPA’s explanation of “article of manufacture”in case In re Hruby(1976). Then this chapter references BPAI’s explanation in Ex Parte Strijland, CCPA’s low demand of the relationship between GUI and its vehicle,and CCPA’s confirmation of partial design in case In re Zahn to demonstrate that GUI meets the “article of manufacture” requirement. Last, it introduces related regulations in MPEP.Chapter three analyses the non-functional requirement and the ornamental requirement. It initially summarizes the doubts to GUI relating to these requirements,including whether GUI is pure functional, whether GUI is designed only for functional considerations, whether the functional elements and ornamental elements are contrary to each other, how to examine these two requirements, and so on. For these, this chapter emphasizes the differences between the “function of design” and the “function of design’s products” by referencing USPTO’s explanation. Then it views the functional elements and ornamental elements are not contrary to each other by referencing case Gorham Co. v. White, demonstrating that GUI meets these two requirements. Last, it introduces how America examines these two requirements comprehensively by referencing UAPTO’s and European’s practices.These two chapters summarize that with respect to “article of manufacture”requirement, the US does not only give broad meaning to “article of manufacture”,but also requires low demand, and provides detailed examining procedures. With respect to the non-functional requirement and the ornamental requirement, chapter three considers American’s previous practice was unreasonable as these two requirements should be examined together. These chapters are one part of the core research contents.Chapter four focuses on research of the Changeable GUI Design Patent’s special authorization conditions. First, this chapter analyses the particularity of changeable GUI and the doubles to its patentability, which are, whether the unprotected contents between states will lead to the GUI cannot be granted of patent, how to apply for changeable GUI design patents. For these, this chapter cites USPTO’s explanation in an application of a changeable phone icon applied by Verizon Co., Ltd., to demonstrate changeable GUI’s patentability. Then it introduces detailed provisions in MPEP. Chapter four researches changeable GUI in view of its particularity,constituting the core of this research together with Chapter two and Chapter three.Chapter five makes suggestions for perfecting GUI Design Patent System ofChina. By deeply researching US GUI design’s substantial authorization conditions and summarizing the deficiencies of China system, this chapter first suggests China recognize GUI Design Patent in Patent Law, as well as set reasonable protection scope and term. Second, it suggests China complete GUI design’s substantial authorization conditions in Examining Guide. It considers China should take substantive examination of GUI and limited protect partial design. Last, it suggests make special provisions for changeable GUI design. This research hopes to perfect the GUI Design Patent System of China and provide protection to GUI design, looking forward to promoting China Patent system’s improvement as well as related industries’ prosperity.