After several years of discussion, China has decided to provide design patent protection for graphical user interfaces. Proposed revisions to the patent examination guidelines of SIPO have been placed on the State Council website for public comments, which are due November 22. SIPO and the State Council Legislative Affairs Office have simultaneously released this draft, which includes an explanation of the reasons for the changes and a redlined copy of the proposed changes to the examination guidelines.
SIPO identified reasons for the change to include the pervasiveness and growing importance of GUI’s, as well as increased domestic investment in GUI design. The proposed changes to the guidelines are in the following areas: remove the general prohibition on electrified screen designs for design patent protection; remove the prohibition against designs being fixed and non-animated; the design patent application should show the location of the GUI in the overall product; the brief explanation of the design patent required in the patent application should explain the use of the GUI; and clarify what constitutes a “significant difference in design” of a product when a GUI is added to an existing product.
Fordham University was one of the first faculties to actively discuss this topic, at a conference held on April 11, 2012, and was later joined by other schools, including Oxford and Tsinghua Universities. Design patent protection for GUI’s in China has also been an actively debated area in the press. USPTO had been particularly active in this area. Former USPTO Director Kappos in mid-2012 described his discussions with SIPO Commissioner Tian on this topic as follows:
“One of the issues we discussed with Commissioner Tian was how to handle design protection for graphical user interfaces (GUI). Design protection of GUIs is important in addressing the increasing phenomenon of migration of real objects to virtual objects, such as cell phones or laptops, or the GUI of a refrigerator to enable its remote control. … Although SIPO’s patent examination guidelines currently deny design protection to GUIs, Commissioner Tian recognized that as a technology-based organization, SIPO needs to address emerging new technologies and adjust its examination and patentability policies accordingly.”
SIPO has indeed showed its willingness to adjust its design patent practices in light of emerging technologies, and deserves to be congratulated.