On Determining The Scope Of Design Patent Protection For Graphical User Interface

After the sixty-eighth decree was issued,the GUI(Graphical User Interface,GUI)was formally incorporated into the scope of protection of the design patent.However,this amendment does not introduce partial design patent legal system,as a result,the GUI that does not take tangible products as the carrier can not be protected.Moreover,the amendment does not give a clear explanation of some details,such as the scope of design patent protection for GUI,the identification of tort and so on.The thesis hopes that through a comparative study on legal system and judicial practice for design patent protection for GUI at domestically and abroad,a more reasonable pattern of design patent protection for GUI will be explored to promote the improvement of legislation and eventually help judicial practice.The general idea of this thesis is as follows.Firstly,the case of “Qihoo v.Jiangmin” is introduced,and focuses of controversy are summarized.Secondly,focuses are analyzed with reference to relevant legislation,practice and case.On the basis of the excellent legislation experience from foreign countries and the need for judicial practice in our country,based on the need of judicial practice in our country,this thesis extracts the points that apply to the design patent protection of GUI in our country.Finally,the thesis makes an analysis on the result of the trial and puts forward some suggestions on the legal application of design patent protection for the GUI.The thesis is divided into five parts:The first part is case introduction.Through a brief introduction of the case and combining with the main demands of both sides,it is concluded that one of the focuses in this case is how to define the scope of design patent for GUI.The second part discusses the theory of GUI.This thesis starts with the degree of contact with the hardware products,classification and definition of GUI.According to contact with the hardware products and the objects actually decorated,the author divides the GUI into "electronic product GUI" and "software GUI".For the purposes of this thesis,the case object of the dispute is the software GUI.Therefore,this thesis focuses on the issues related to the design patent graphic for software GUI protection.The third part analyzes the legal basis of design patent protection for GUI.Through the combing of the legal system and judicial practice of design patent protection at domestically and foreign,it is concluded that the scope of the protection of design patent is limited to the same or similar products.The infringing product and the product of the design patent belong to the same category,which is the prerequisite for judging the patent infringement of the design patent.GUI design patent is a kind of design patent.If there is no specific provision,the way to determine the scope of design patent protection for GUI should be the same as the general design patent.The fourth part analyzes the definition of the scope of design patent protection for GUI.When definiting the scope of design patent protection for GUI,the main controversies of the two sides are the limitation of product classification standard,name of product and product in definiting the scope of design patent protection for GUI.Through above analysis,the author views that all the above elements have limited effect on the scope of design patent protection for GUI.However,limiting the product to a tangible entity is not conducive to protect GUI design patent.The fifth part makes comments on the results of case referee and puts forward suggestions for mending the design patent protection legal system for GUI.The author believes that when the carrier of GUI design patent is customary design,we should recognize that the GUI has a more significant impact on the overall visual effect.Meanwhile,in view of the new development of the design patent protection for GUI,the author looks forward to the new pattern of design patent protection for GUI.For example,loosening the limitations of design patent on the scope of design patent protection,broaden interpretation of the product,introducing a partial design patent legal system.