China: Is The GUI Design Patent Dead In China?

Last Updated: 3 January 2018
Article by Hui Wang and Xu Li
Most Popular Article in China, January 2018

May 2016, Plaintiffs Beijing Qihu technology co. LTD and Qizhi software (Beijing) co. LTD sued Beijing Jiangmin technology co. LTD on the grounds of infringement of their design patent "computer with GUI", requiring a cease to the infringing behavior and claiming 5 million RMB in damages. However, after a one and a half year trial, on 25th December, the judge made the decision in the first instance on grounds of there being no direct or indirect infringement based on the fact that the defendant's infringing product is a piece of software not a "computer", namely, the two products are neither the same nor similar.

Since May 2014, China has allowed the application for GUI design patents, and the number of applications is increasing rapidly. It is well known that the core technology of GUI design patents is the interface itself. GUI is a software product which can be implemented on different hardware or devices, and its core content to be protected is not related to carriers. However, under the current Chinese Patent Law, and according to regulations of Chinese Patent Examination Guideline, partial design is not allowed and the products must be protected integrally by design patents. In practice, GUI in China can only be filed together with the product, e.g. "A computer with GUI". It means that carriers of GUI (i.e. "computer" in this case) are also a part of protection scope that causes a huge limitation of protection.

It is disappointing that GUI as a new product is still considered a "product with a shape", based on outdated thought process stemming from either from the perspective of the Patent office or that of the courts. In terms of judge's viewpoint and judicial prudence, it is also understandable that the judgment is made based on the current law.

It is noticed in the written judgement that although SIPO introduced product design with GUI into the 68th order, its content can be adjusted liberally in the framework of the current design patent, and it is not a regulation independent of the current system. According to the supreme court's judicial interpretation "where the alleged infringing design is identical with or similar to a certain design of the complete set of products, the people's court shall determine that the alleged infringing design falls within the scope of protection of the patent right", the involved product is cleared of infringement due to the differing classifications of computers and software.

This judgement affects not only the plaintiffs of this case but also on thousands of patent holders of GUIs in China. The result of the first instance made by Beijing IP court even has the following negative effect: a separating business operation of hardware and software is tending in computer industry, however, hardware providers could easily avoid infringing acts without pre-installation of software on hardware by selling in light of this judgement, and software providers could also more easily copy designs from others.

In fact, Chinese legislators have been aware that the subject matter of design patents should not only be the whole product itself but also should be extended to parts of design. However, this could not be taken into practice based on the current system of laws and regulations. After analyzing the legislative trends, we still believe that partial designs will be allowed and a GUI design patent itself will be as a subject matter protected in future.

Of course, this still may be not a closed case if the plaintiffs decide to appeal. Regarding the situation as a whole we, in the meantime, are still waiting for some encouraging and ground-breaking measures to be taken on the judicial level.

With help from Nicholas DeFeo.

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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