== Partial Design System to be Introduced in June of 2021 ==
Among the IP5 Offices, China is the last one to introduce partial design system next year. The new system will take effect from June 1, 2021, as announced according to the recently published new Chinese Patent Law. Although it remains unclear as to whether the partial design system will apply to ALL Chinese design applications which are pending as of June 1 of 2021 or only apply to those filed after June 1 of 2021; the news was cheerful enough for many technology companies and IP practitioners.
Among these companies, internet companies and smart appliance companies are probably the most excited ones, as they have created a variety of interesting graphical user interface (GUI) elements such as windows, icons, menus and pointing buttons. Partial design will be a new way of patenting GUI in China.
== GUI Design Coupled with Exhaustive List of Devices ==
Indeed, the GUI design played a pivotal part in driving the introduction of partial design system in China. A notorious case was the design infringement litigation in 2017 (QIHU 360 v.s. Jiangmin). Briefly, under the current Chinese Law, a GUI design is only patentable when it is attached to a specific product described in the application.
As a result, QIHU 360's GUI design patent ZL201430324283.6 (CN201430329167) was illustrated with six views of a specific computer display and was entitled "A computer with graphical user interface". Jiangmin, however, has offered for sale a software tool which arguably showed a similar GUI design, but Jiangmin has never actually produced or sold the computer display. The court eventually took a position that there was no infringement because of the absence of a computer display in Jiangmin's commercial activity.
This decision caused a lot of angers and complaints in the internet IP sector. It exposed a fundamental issue that a mandatory attachment of a physical device with GUI design would make the scope of such design patent extremely narrow, barely enforceable and totally useless to internet companies.
In order to address the issue, the China Patent Office (Now CNIPA) published an important No. 328 bulletin in 2019, and came up with a solution which resembled "partial design" system but without using dotted lines. Basically, the Applicant can now file a display device (a square box in solid lines) with a GUI, and the display device can be exhaustively listed in the Brief Description of the design application. This aimed to weaken the role of the devices and tried to shift focus of the parties to the GUI itself.
However, the No. 328 provision did not decouple the GUI from the physical device, even though the devices could be listed as exhaustive as possible in the patent. In other words, the No. 328 provision still did not address the issue when an infringer is displaying the GUI in a software or virtual reality (AR) (i.e., no device at all). It would still be hard to say there is an established infringement, like in QIHU 360 v.s Jiangmin case.
== GUI Design Coupled with A Device in Dotted Lines ==
In order to completely remove the impact of the physical device on the GUI design, the ideal approach is to acknowledge that GUI is a "product", such as the current practice adopted by EU. In EU, it is not necessary to specify a connection between the GUI and the physical device to which it is applied, and thus GUIs displayed through software or virtual reality (VR) technology can be more easily protected.
However, this practice is against the current Chinese Patent Law, and possibly against the upcoming new law as well, which defined design as being patentable when it is associated with a product in its entirety or partiality. The product here, by definition, should be physical and tangible.
An alternative approach is the use of "dotted lines" to disclaim the unprotected part(s) such as the physical device. However, a number of jurisdictions (e.g., U.S., Japan, Korea) considers that the type of physical device represented with the GUI does affect the scope of protection, even if the physical device to which the GUI is applied is shown in dotted lines.
As China is to introduce the partial design system next year, the CNIPA/courts will certainly publish updated guidelines or judicial interpretations on how to correctly use "dotted lines". However, in our opinion, the possibility of completely decoupling the GUI design from the physical device is still low.
== Conclusion ==
The No. 328 bulletin announced by the CNIPA in 2019 to some extent relieved the urgent request of GUI Applicants for partial design system. The new Chinese Patent Law, which will take effect from June of 2021, will likely allow "dotted lines" to come into play. However, due to the nature of GUI which can't be deemed as a physical product, there is still a long journey to go as to how to protect GUIs that are displayed in software or VR technology only. Copyright is certainly an alternative approach, but the criteria for examination and litigation on the basis a GUI copyright is also not good enough in Chinese practice.
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