On The Determination Of The Design Patent Infringement Upon Graphical User Interface

Graphical User Interface(GUI)has been widely protected worldwide through copyright,trademark rights,and patent rights ever since the mid-1980 s.Design patents clearly protect the GUI for the first time with the revision of the Examination GUI passed by 2014.The patent war concerning GUI design between Apple.and Samsung.,as well as the case of Qihoo v.Jiangmin has aroused widespread attention and in-depth thinking on GUI infringement issues all around the world.Although the authorized amount of GUI patent in China has been considerable for a long time,the provisions of the Patent Law on the GUI are still not specific and clear.The protection of the GUI by the current law is lagging behind,and the empirical research on GUI infringement still needs to be sorted out and demonstrated.Based on the basic theory of GUI infringement practice and design patent at home and abroad,this study focuses on GUI legislation and judicial practice in the future in view of GUI,the determination of the infringement upon GUI is discussed comprehensively.There are three major types of disputes on the determination of the design patent infringement upon GUI for the separation characteristics of the GUI design with carrier products in GUI,the restriction of the product name,and the neglect of partial innovations under the "overall visual effect mode”.The disputes are as follows:(1)whether the same or similar category and the scope of protection,should be broken through the product name in the application document;(2)whether the development and dissemination of GUI software should be found to be illegal and constitute infringement,and the establishment of indirect infringement can ignoring directly infringement;(3)The "overall observation and comprehensive judgment" ininfringement judgment is insufficient to protect the partial innovation of GUI,which conflicts with the purpose of GUI design protection.Through comparison and analysis,it is found that many countries with developed Internet and software industries have or tend to break through the limitation of product categories,and some of them have even regarded GUI software itself as a product in legislation or relevant judicial practice.The design is based on tangible products in view of current patent law.Therefore,the GUI software is regarded as product conflicting with the legislative purpose of the design patent.However,to achieve a proper separation of design and carrier product,the same or similar product category in the infringement identification should go beyond the limitation of product name in the existing application documents based on the separation characteristics of the GUI and its carrier product.A comparative study of the similarities and differences of domestic and foreign patent infringements is carried out.It is pointed out that the existing direct infringement and common infringement rules in China cannot effectively regulate the provision of GUI software.It is suggested to introduce the indirect infringement system,and adopt the "independent theory" of indirect infringement to effectively regulate the behavior and realize the rectification justice.The advantages and disadvantages of the "overall visual model" and "innovation model" are sorted out according to the GUI infringement judgment standards.China should absorb the "innovation standards" in some extent.The defect of insufficient protection of GUI can be solved to a certain extent by "Innovation mode".The establishment of some design systems,in the long run,can better regulate the infringement of GUI.GUI design is essentially the innovation of partial design.