Research On Design Patent Protection Of Graphical User Interface

The protection of the Graphical User Iterface(thereafter “GUI”)is a small problem,but it reflects the lack of consensus on some basic issues in the construction of design system in China.GUI brings new practical problems to the theoretical framework of design system,and provides new experience materials for the development and reform of design system.It can be concluded that the protection of GUI design patents requires a "breakthrough in new concepts,a new theoretical construction and a new system design".This paper is just such an attempt: on the one hand,under the guidance of the basic theory of design patent system,it is devoted to clarify the rules of patent protection of GUI design;on the other hand,it is hoped to promote the modernization of the theory of design patent through the research of the protection of GUI design patent.ⅠGUI is a graphical user interface driven by software code.As the representative of digital design,GUI is the result of the integration of computer technology and software technology.It is also the product of the transformation of design culture from "material design" to "immaterial design".Based on the experience types in daily life and legal practice,GUI can be logically classified as " GUI generated by the System Software" and "GUI generated by the Application Software".ⅡThe legal protection of GUI is the result of the expansion of intellectual property rights in software industry.From the naive theory of equal value and market-oriented intellectual property law,the protection of intellectual property rights in GUI has its reasonableness and necessity.The right to design is an international common practice in the protection of GUI,which was incorporated into the scope of the design patent in China in 2014."Design" and "product" are two core concepts of design patents.Design promote products in the market,while products limit design rights.These two concepts and their relationship together construct the right system of design patents.The legislative motive of design patents is not to encourage designers and edify consumers romantically,but to protect the economic interests of businessmen,which is to protect the maeket value of designs for its appling products.It is the key to clarify patent protection rules of the GUI design.ⅢAccording to the design patent system originated from traditional entity industry,the GUI must take the overall appearance of the product as the application unit to apply for a design patent,and the patented product of the GUI design patent is excepted to be a hardware product which is a physical entity.At present,the number of GUI design patents in the application software field is more than that in the system software field in China.In practice,the focus of system software’s GUI design patent protection is the "design",which means that the partial design protection is lack in China;and the root of application software’s GUI design patent protection is the "product",which means how to properly interpret the product of the design patent.ⅣPatents for different types of GUI design have the same basis as well as different features.Therefore,different types of GUI have different patent protection problems,which need different solutions.Specifically,the current solution to the patent protection problem of system software’s GUI design is to actively interpret the "disitinctive design part",while in the long run,the partial design protection should be introduced in time;the solution to the patent protection problem of application software’s GUI design is to break through the material entity concept of the patented product and interpret software products as the patented product.ⅤChina should respond to these problems and the dilemmas about GUI design patents in practice at both legislative and judicial levels.Firstly,in the aspect of legislative reform,we should grasp the ture value of the design patent,which is to protect the promotion value of designs for products,and change the meaning of two core concepts: Firstly,design elements should be changed from "overall design" to "partial design",and the demand for protection of partial design of products should be responded urgently;second,the concept of product is in the process of changing from "material product" to "software product",which is invisible but objectively existent.To this end,the relevant provisions of the Patent Law and the Patent Examination Guide need to be changed accordingly.Secondly,in terms of judicial rules,the patented product of system software’s GUI design is the hardware product,and the patented product of application software’s GUI design is the software product.The unauthorized manufacture,sale and import of patented hardware products/software products about the protected GUI design is the act of infringement.The calculation of patent damages should be based on the market profit of hardware products/software products which the patented GUI design apply for.