The evolution of technology and the appearance of new dynamic applications are demanding new ways of protecting graphical user interfaces, pointed out Tracy Durkin, from Sterne Kessler, David Musker, from Queen Mary University, Stephen Yang, from IP March, and Flávio Alcântara Queiroz, from the BPTO. They were the speakers in the panel “Industrial Design as a Protection Strategy for Dynamic Graphical Interfaces” of ABPI’s 40th Congress, mediated by ABPI director Ricardo Boclin. Today, in the world, there are more than 2 million apps in the Apple App Store and Google Play.
“The world of user interfaces is exploding, and the need to protect this innovation is increasingly acute”, said the representative of Sterne Kessler. According to her, in the United States, industrial design patents have become the most growing asset and constitute more than 6% of design patents in the country. The depositors, she added, are not just technology companies like Microsoft, Samsung, Apple, and Google, but also those who are not in the software generation business, such as the automobile, consumer goods, banking, and food industries. “It is the fastest-growing area in the USPTO (U.S. Patent and Trademark Office), both in the number of applications and in examiners”.
In Europe, Musker explained, there are two ways to protect graphical user interface elements. One is to use a system similar to that of the United States, where the product is considered to be three-dimensional, such as a computer, a smartphone, a screen, with the graphical user interface being the design of a part of that product. The other is when the product is a graphic symbol, without the need to represent a computer. “The product is the graphic product, and the design refers to that graphic symbol”, he explained. “In the case of an image with visual distinction, which predictably changes in a short time, the protection system of the European Office limits it to seven images, which provides good working possibilities”.
The IP March representative explained that, in China, the design patents protect the appearance and are valid for ten years. “The point is that the Chinese system evolves very fast, the law changes every year, the type of examination changes”, he said. “The new Chinese Patent Law was passed five days ago, but the fourth amendment to the legislation is already in effect”. According to Yang, to grant the registration, the Chinese office requires six direct octagonal views, which must correspond to each other, and shading is not allowed. Such requirements, he said, may explain the low number of applications from foreigners compared to Chinese depositors. In 2009 there were 339,654 applications from Chinese against 11,688 from foreigners. Ten years later, the disproportion continued: there were 691,771 deposits from Chinese residents versus 19,846 from non-residents.
In his presentation, Queiroz showed a study listing the types of graphic interface protection adopted in the main world intellectual property offices. The study revealed that Brazil protects only five types against 13 from South Korea and the European Union and nine from the United States. In Brazil, according to Queiroz, the protection of the industrial design of graphical user interfaces stumbles upon the lack of clarity in the legislation and, administratively, the absence of specific procedures for some definitions. “The main challenges are legal, in the sense of better defining the industrial design, mainly concerning the progression of visual expression and the definition of predominant distinctive characteristics”, explained the BPTO representative.
