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

In recent years,with the development of the electronic information technology industry,the number of applications for design patents has been increasing,the most prominent of which is the application for graphic user interface design patents.Since2014,when China’s Patent Examination Guide incorporated the graphical user interface into the object scope of design patent protection,the judicial protection of the graphical user interface has also been put on the agenda.In 2016,"Beijing Qihoo,Qizhi Company v.Jiangmin Design Patent Dispute",let everyone realize that the court in accordance with the "Patent Dispute Interpretation" to hear the graphical user interface design patent dispute can not reasonably and comprehensively protect the design,especially in the infringement of the identification there are many of these disadvantages.Therefore,the academic and practical circles have carried out the analysis and discussion of the rules of patent infringement of graphical user interface design.This article is to explore the rules of infringement of the graphical user interface suitable for china’s national conditions for the purpose of research,the use of comparative analysis,case analysis and other research methods,studied in the four parts with the improvement of the patent infringement determination rules for the design of the graphical user interface in China.The first part provides a general overview of the graphical user interface,which provides a preliminary introduction to what the graphical user interface is.First of all,according to academic research and laws and regulations on the description and concept of the graphical user interface has been clearly defined,and on the basis of the clear concept,summarized and analyzed the four existing characteristics of the design patent: industrial products as a carrier,protection scope and overall design,with human-computer interaction,the object contains dynamic picture.In addition,the specific case sits in the provisions of the graphical user interface in the Patent Examination Guide and the Patent Dispute Interpretation,and paves the way for the later discussion of the difficulties of patent infringement of the graphical user interface design.The second part describes the dilemma of analyzing the patent infringement determination of graphical user interface design.According to the specific case,when the infringement determination of the design patent,there are four main aspects: First,the definition of the scope of protection is not clear,the product and design are equal,resulting in the protection of the graphical user interface is not clear;Third,it does not provide for local design patent system to cause products and designs to be difficult to separate when infringement is recognized,which raises questions about whether the design patent is a protected product or design,and fourth,the "overall comparison" standard used in the identification standard,but the judge in judicial practice often applies the "confusion" standard.The third part summarizes the rules of patent infringement of the graphical user interface design outside the domain and analyzes it.In determining the scope of protection,Japan focuses on the scope of the filing document clearly on the scope of the filing of claims,the United States local design patent system is very good to achieve the separation of products and designs,the graphical user interface and its parts can be patented separately,in the determination of the graphical user interface infringement without considering the product In the choice of the subject of infringement determination,Europe and the United States think that the subject should have a broader knowledge and higher observation power than ordinary consumers,in the establishment of the identification criteria,we all adopt the "confusion" standard,that is,to judge whether the alleged infringement design and patent design can make the subject confused or misidentified.The fourth part,combined with the above-mentioned experience of extraterritorial infringement rules,puts forward realistic and feasible suggestions for the infringement determination rules of graphical user interface design patents in China.First,it is suggested that the scope of rights should be delineated by false and solid lines when claiming rights,secondly,in order to separate the product from the design in the identification of infringement,introduce the local design patent system,and propose to include computer software in the category of design patent products,and then,it is suggested to enrich the "general consumer" of the subject of China’s identification.Finally,it is suggested that the infringement identification criteria of "overall comparison" should be changed to the "confusion" standard,and new concepts such as novel design comparison and design space should be added.