On March 12, 2014, the State Intellectual Property Office of
China (SIPO) announced amendments to the Guidelines for
Examination, which give design protection to graphical user
interfaces (GUIs). The amendments will take effect on May 1,
With the fast growth of the IT industry, SIPO recognised that
there is a need to protect the creative work involved in designing
GUIs for products such as mobile phones, computers and digital
cameras. However, Section 7.4(11) Chapter 3 of Part I of the
guidelines specifically prescribes that "the patterns shown
when the product is electrified, such as the pattern on an
electronic watch dial, the pattern on the screen of a mobile phone,
software interface, and so on" are not the subject matter of a
Section 7.2 Chapter 3 of Part I prescribes that "the
pattern of a product shall be permanent and visible, and not
flickering and visible only under specific conditions".These
sections exclude the possibility of protecting GUIs with design
patents. In order to allow GUIs to be protected by design patents,
these sections have been deleted.
However, this does not mean that any pattern displayed when a
device is switched on can be protected with a design patent. The
new guidelines exclude "game interfaces, and patterns
displayed by the displaying device of a product, which patterns are
not relevant to human‐computer interaction or to the
realisation of the function of this product, such as wallpaper on
an electronic screen, patterns shown during the start or shutdown
of the device, or the layout of drawings and texts on web pages of
websites" from the subject matter protected by design.
Although the amendments are aimed at giving GUIs design
protection, theoretically the changes may open the door for the
protection of designs that are not GUIs but can only be seen when a
product is in a power‐on state, such as a pattern of lights
shown in a head light or tail light of a car, which has not been
possible previously. It is arguable that such a pattern of lights
does not fall into the excluded subject matter as it may be
relevant to human‐computer interaction or to the realisation
of the function of the product, such as a car head light. However,
from recent seminars held by SIPO regarding design protection of
GUI, it seems more likely than not that examiners will reject
design applications for the patterns of light in a car head light
seen only in its power‐on state.
The amendments add a paragraph to Section 4.2 Chapter 3 of Part
I, which prescribes the requirements for drawings in a design
application for a GUI. It reads "So far as a product that
includes a GUI is concerned, views of the complete product should
be submitted. Where the GUI is dynamic, the applicant should submit
views of the complete product with at least one state of the GUI
and may submit views of the key frames only for the other states
and the views should be able to exclusively determine the trend of
change of the animation in the dynamic patterns." It is to be
noted that the subject of a design still needs to be a product with
a GUI. It is still not possible to protect the GUI itself,
independent of the product that includes such a GUI.
The amendments also add a paragraph to Section 4.3(7) Chapter 3
of Part I, which prescribes the requirement for a brief explanation
for a design application for a GUI. It reads "So far as a
product that includes a GUI is concerned, when necessary, a brief
explanation specifies the use of the GUI, the location of the GUI
on the product, ways of human‐computer interaction and
different states, etc."
The amendments also add a paragraph to Section 6.1(5) Chapter 5
of Part IV, which prescribes the principles for comparing a design
patent for a product that includes a GUI, with prior designs of
products of the same or approximate category, in invalidation
proceedings. It reads, in determining whether a design patent for a
product with a GUI is significantly different from prior designs:
"So far as a product that includes a GUI is concerned, if the
other parts of the design are common designs, the GUI has a notable
influence on the overall visual effects."
Previously published in the World Intellectual Property
Review (WIPR) magazine
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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