A graphical user interface (GUI) refers to an interface
presented as a graph or image in a display which links to an
operating system. A user can perform an operation by clicking the
graph or image in the interface. A GUI is protected under copyright
and unfair competition law, and was acknowledged as a patentable
design under the Chinese Patent Law in 2014 by notice No. 68 of the
State Intellectual Property Office of China.
After the notice was issued, Qihoo 360 obtained the first design
patent for a GUI on August 14, 2014 and filed many design patent
applications covering GUIs, leading a trend of protecting GUIs
under patent law.
On April 22, 2016, Qihoo filed a complaint with the Beijing
Intellectual Property Court against Beijing Jiangmin New Science
& Technology, asserting that Jiangmin infringed three design
patents covering GUIs owned by Qihoo. According to the complaint,
Qihoo developed GUIs related to computer security optimisation and
obtained the patents.
Jiangmin, a company providing antivirus services for computer
users, launched a new product called Jiangmin Optimizing Expert,
which Qihoo said uses a GUI similar to that shown in its patents
and that the company allegedly infringed the patents. This is the
first litigation case related to GUIs in China since they were
acknowledged as patentable subject matter in 2014.
According to the patent documents, the patents protect a
computer with the shown GUI and the GUI is only part of the
protected computer. According to article 11 of the patent law,
design patent proprietors have a right to prevent any entity or
individual from manufacturing, offering for sale, selling, or
importing a product incorporating a patented design without their
However, according to the complaint, Jiangmin only uses a GUI
similar to that shown in the patents in its software provided to
end users, and does not provide a computer incorporating the
patented design to the end users. The GUI is only shown in the
computer of the end user. That is, Jiangmin may use the patented
GUI, but it definitely does not manufacture, sell, offer to sell or
import the computer incorporating the patented design, which are
the actions that the patentee has a right to prevent others from
doing. It is indeed arguable whether Jiangmin had infringed the
design patents at all.
Qihoo asked for compensation of RMB 15 million ($2.25 million)
for the alleged infringement of the three design patents, in
addition to a request to stop the allegedly infringing action.
According to article 65 of the patent law, the amount of
compensation for the damage caused by patent infringement may be
assessed on the basis of the actual losses suffered by the
proprietor because of the infringement, the resulting profits
earned by the infringer, or by reference to the appropriate
multiple of the royalties under a contractual licence.
However, Qihoo and Jiangmin both provide free software using
GUIs to the end users, so it seems that no actual losses or profits
earned from the software can be determined. Also, there is no
record of royalties under contractual licence for a GUI in China.
Under such circumstances, even if Jiangmin is determined to
infringe the design patents owned by Qihoo, it is difficult to
determine the compensation for the damage caused by the
As a routine counter action, the defendant Jiangmin filed
invalidation requests against the patents with the Patent
Reexamination Board and requested the court to suspend the
adjudication of the case based on the invalidation requests.
According to the local practice, the court has the power to agree
with or reject the request of the defendant on a case-by-case
basis. The court noted that Qihoo had provided design patent
evaluation reports for the involved patents, which concluded that
the rights to the involved design patents were stable; it thus
rejected the request of Jiangmin and will hear the case later.
As the first case related to GUIs, this has caught much
attention from the intellectual property community of China and the
judgment of the court will shed light on issues such as how to
determine the infringement of a GUI and how to determine
Guangyu Zhang is a partner at Peksung Intellectual Property. He
can be contacted at: email@example.com
This article first appeared in World Intellectual Property
ReviewSeptember/October2016, published by Newton Media Ltd.
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