The Study On Design Patent Protection Of Software User Interface

With the development of IT education,in the field of software developing,in respect of software coding,design and optimization of algorithm,it is possible to cultivate a qualified programmer through several months or so.However,in the aspect of user interface(UI)design,excellent talent is scare.From this,we can see the importance of UI design for the software enterprise in the future competition.For this reason,gradually,many countries agree to protect UI through the design patent,however,in terms of the scope and the manner of protection,different people have different opinions.It is discussed in this paper to explore the substance of UI and its protection through design patent.Specifically,this question is discussed in the following six parts:The first part is about the definition of the Software User Interface.In this paper,Graphical User Interface(GUI)is classified into two categories: "Graphical User Interface for Electronic Product" and "Software User Interface".This classification is the foundation of this paper.In the past,domestic and foreign legislations and scholars equated them,but in my opinion,there is subtle difference between them.The difference lies in how closely they are combined with hardware.Nowadays,software is gradually separated from hardware when it is made and sold,because it is not necessary to be attached to one specific hardware,and the intention of designer in the progress of UI designing is to decorate software itself but not hardware.Therefore,it is valuable to discuss this classification and to discuss the Software User Interface separately.In the second part,there is an analysis of the current situation and problems about GUI design protection at home.In 2014,“Patent Examination Guidelines” was amended and then GUI has become the object of design patent.This part is mainly to interpret the revised regulations on GUI.In my opinion,in terms of the object of GUI design,the whole of product and design is protected through this amendment and the product is strictly limited to electronic product.According to this,the Software User Interface defined in this paper cannot get the protection of the design patent in our country.However,after retrieving numbers of GUI patent applications in practice,there are a large number of GUI design patents that are not closely combined with hardware.Strictly,this kind of GUI does not meet the functional requirementspecified in the 2014 amendment.Therefore,it is obvious that there are much demand for the design patent protection in the Software User Interface.Accordingly,there are two problems in the protection of GUI design in our country: firstly,the object is not clear,that is,whether the design or the whole of product and design should be protected? It remains in doubt.Secondly,the product is required too strictly.It is unreasonable that the product is limited to hardware.For the Software User Interface,whether hardware or software is its product? The problem remains to be discussed.In this paper,these two problems cause the situation that the Software User Interface cannot be protected through design patent.Therefore,the following parts will focus on the two questions.The third part is about the foundation of design patent protection for the Software User Interface.This part is composed of three sections.In the first section,the problem is discussed about the protection of the whole of product and design: the protection of UI is inadequate whether in terms of application between different kinds of product or in terms of the partial design.In the second section,in this paper,the basis of GUI patent protection is discussed.And it lies in the protection of the design itself and its partial design.For one thing,the features of the Software User Interface design are analyzed: the design is not closely combined with tangible product,the design updates frequently and the design is becoming the key work of software development.These features determine what should be protected is the design itself.For another thing,from the perspective of the labor theory of value and the incentive theory,it should be recognized that the legitimacy basis of GUI design protection lies in the facts that it can encourage continuous innovation.Therefore,considering the protection of software design innovation at home,the design should be highlighted in legislation.In the third section,for the above-mentioned reasons,in order to protect the design better,the partial design should be introduced into china's patent legislation.And it is also discussed in this section about the definition,the advantage and foreign legislations about the partial design system.The fourth part is about the comparison of the GUI design patent protection in foreign countries.In this part,the different legislations on GUI design patent protection are compared between the United States,the European Union and Japan.Then,in the conclusion of this part,the legislation of GUI design in our country can be improved by referring foreign experiences.The fifth part is about the reflection of the product of the Software User Interface.The question raised in the second part will be answered: whether the software belongs to the industrial product required in the Patent Law.In my opinion,as far as the design of the Software User Interface,the "product" required in the Patent Law should be the software itself but not hardware it runs on.Because if hardware is identified as product,the object of GUI design patent protection is not clear,that is,it is controversial whether the product is the whole hardware(or part of it)or it's display screen(or part of it).In addition,the feature that the Software User Interface is not closely combined with hardware makes it unreasonable to identify the product as hardware.Besides,it is not logical to identify the product as hardware.On the contrary,software itself should be identified as the product.Firstly,software is in full compliance with the definition of industrial product required in the Patent Law.As a computer program,software is so easy to duplicate.it is produced in an industrial approach and can circulate on the market in the form of software package.It has specific functions and can be applied in industrial application.It can be largely produced.From this point,the software belongs to the product of the design.In addition,some related scholars' point of views at home and abroad are referred in this paper to prove such a point.Some domestic scholars tend to believe that "industrial product" should include software.American scholar Vietzke Lance L points that the software is a kind of industrial product,which he concluded from the analysis of In re Hruby case.The provisions of UE exclude computer program as product is challenged by scholars.In the last part,the conception is discussed about how to protect the Software User Interface in practice.The partial design system should be established.it should be admitted that software is one of the industrial products required in the patent law.On this basis,in this part,some ideas are also discussed on how to apply for a patent as terms of the Software User Interface.