Nowadays, it’s hard to describe the 286 computer used in our age to the kids; the cold black screen, the blinking cursor and the riddle like coding, all appear to be so mysterious. However, thanks to the development of graphical user interface (GUI) technology, now the interface of electrical devices has become vivid and colorful. What’s more important, the GUI enables the electrical devices to be operated in a “What You See Is What You Get” way, even little kids can operate the latest electrical devices, like the iPhone and iPad, with ease.
On the other hand, the GUI has become one of most important factors that differentiates one electrical device from another. Merely by viewing the GUI itself we can distinguish a Windows Phone from an iPhone or distinguish an Android Pad from an iPad. Sometimes the GUI even plays a more important role in consumer’s decision-making than the exterior design of an electrical product, so no wonder that consumer electronic product manufacturers spare no effort on developing more attractive and more user-friendly GUI for their products. As a result, protecting GUIs have become one of the hottest topics among the IP practitioners.
As the legal regimes of GUI protections vary from country to country, the first challenge to in-house IP counsels from multi-national companies like ZTE is to get better acquainted with the differences between available statutory forms for GUI protection and their respective protective levels, then develop an appropriate protection strategy accordingly.
For example, in the U.S., GUIs can be protected under the patent law as design patents and the huge amount damages awarded in the Apple v. Samsung case has shown that design patent can be used as a very powerful protecting weapon. Furthermore, in some cases, GUI can also be protected by copyright law as well as trademark law. This overlapping protection system provides the GUI designers with flexible options to choose the best way to protect their own GUIs in the U.S.
In Europe, GUIs are basically protected under a specific law i.e. “Council Regulation No 6/2002 of 12th December 2011 on Community Designs” as design rights, and it seems other protective measures are essentially excluded. However, if we take a close look at the definition of “design,” it has a very broad scope that means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture and/or materials of the product itself and/or its ornamentation. We can see from this definition that the protected objective is design itself, rather than the product. In addition, although novelty and individual character are required for granting design rights, it is not subjected to substantial examination, so taken in this sense, EU has a very open attitude on design right protection; GUI protection in Europe is treated in a way similar to copyright protection.
In Japan there is also a specific Design Law which can protect GUIs, however, unlike the stipulations in its counterpart in EU, the Japanese Design Law associates designs with specific products. This means in cases where you use the same GUI on different kinds of products you need to designate those products on which the design is used, furthermore, you should also consider in advance on which other products the GUI will possibly be used in the future upon filing so as to have a full coverage.
In China, (11) Article 7.4, Chapter 3 of the Guidelines for Patent Examination stipulates that the pattern shown when the product is electrified is not patentable as a design patent, as a result, a GUI is not protected under the patent laws, consequently one of the major available forms of legal protection for GUI in China is copyright. Copyright Law only protects the expression of the idea from being copied without permission and not the idea itself, so it may provide adequate protection for specific individual elements of the GUI, such as icons and graphic design. Unfortunately, when it comes to the “functional” elements of the GUI, like menus and command hierarchy, using copyright law for protection will probably face some obstacles. Copyright infringement case of Shenzhen Ji Xiang Teng Da Technology Company Limited v. Shenzhen TP-LINK Technology showed that creativeness requirement has to be met for GUI in order to be qualified for copyright protection. However, due to the user’s need to reduce the learning curve to new electrical devices, the design of GUI has the tendency to be standardized, which may result in certain obstacle for GUI to obtain creativeness and consequently the copyright protection.
To sum up, copyright is a typical form of protection available in most countries, when a GUI obtains distinctiveness or secondly meaning, it can be protected as trademark or trade design in some countries. However, as to the patent law, due to the various perspectives held by governments and legislations, the GUI protection is different from each other in terms of protective forms and protective levels. Certainly a unified legal system for GUI protection means lower cost and greater effectiveness to the enterprise, but as every country has its unique conditions and circumstances, we should approach the integration of GUI protection with caution so as to maintain fairness. In practice, along with the globalization in this internet age, activities that infringe on a GUI may not only take place in a single jurisdiction, so currently applying a combination of protective measures in as many countries as possible can offer the greatest extent of effective protection for a GUI.
In addition, it’s worth mentioning that to protect the exterior appearance of a GUI is only one aspect of GUI protection. From our point of view, the subject matter of GUI has a broad scope which includes the computer program realizing the GUI, the method of man-machine interaction embodied in the GUI, as well as some supportive technologies like Touch Technology, speech recognition and Sensor Technology. It’s necessary to consider all the above-mentioned elements and the design of GUI as a whole, choose the appropriate protective measures based on particular feature you would like to protect, then form a comprehensive protective system for the valuable intellectual property asset in your GUI.
