A recent court case in China has clarified the scope of protection afforded by registered designs for graphical user interfaces (GUIs).
In recent years, intellectual property laws in various countries have been changed to extend the protection afforded by registered designs (which protect the appearance of products) to GUIs. This enables protection to be sought for the appearance of software on a display screen (e.g. in the form of icons, etc.), which is of increasing importance in the world of smartphones and tablets.
However, since this type of protection is a relatively recent right, there have been few decisions in the courts yet, in any country, to give an insight to the breadth of scope afforded to design protection for GUIs.
The recent judgment in China, in the case between Beijing Qihu Technology and Qizhi Software, and Beijing Jiangmin Technology, came to the decision that a design for a GUI has to be accompanied by its carrier product, e.g. computer, phone or tablet. This is because Chinese design law prevents partial designs (for only part of a product) from being granted in Chinese registered designs. Instead, the whole product (e.g. as sold) must be shown in the registered design.
Thus, it seems unlikely that it will be possible to obtain a valid right for a registered design directed solely to a GUI in China, without its accompanying hardware carrier being shown. However, partial design protection in available in other countries, e.g. in the EU. This means that registered design protection for GUIs on their own (without their carrier) may be validly obtained outside of China.
This is an unfortunate decision as it does not recognise the separation between software and hardware in computer technology (i.e. a single GUI design will generally be provided across multiple different hardware platforms), thus weakening the design right obtainable. However, in light of the restrictions in Chinese design law with regard to partial designs, the court may have felt it difficult to come to any other decision. It may likely require a change in Chinese design law to bring it up to date with current practice in the computer industry.
“In practice, a GUI in China can only be filed together with the product, e.g. “A computer with GUI”. It means that carriers of GUIs (i.e. “computer” in this case) are also a part of protection scope.”
http://en.chofn.com/resources/details/?id=241
