There is an emerging issue which requires our attention and discussion over it. As we are aware that Intellectual property (IP) consist of various subject matter such as patents, copyright, design, etc. The issue I bring here is with the design protection on Graphical user Interface (GUI). When JioMeet was launched, Zoom claimed that JioMeet had entirely copied Zoom’s interface with the same colour, phrases, placements and design and was planning to file a suit. But later didn’t file any case for infringement. which have rekindled the issue whether GUI can be granted design protection.
What is design?
Design is a protection given to aesthetics (visual appearance/look and feel) of any article or product of manufacture. Where novel design feature such as shape, configuration, pattern, ornament, etc gets exclusive protection. Some examples might include shape of bottle and furniture, pattern on clothing, design of smart phone etc. The term of protection is 15 years subjected to renewal.
Design and GUI
Currently, various country such as United States, France, Germany, Singapore, etc grants design protection for GUI. USA is granting design protection for ‘Computer Generated Icons’ since 1996. Some of the major example of design protection granted to GUI includes Apples’ ‘slide-to-unlock’ feature and simulation of turning pages over screen.
In 2011 Samsung was sued by Apple claimed that certain Samsung infringed three designs such as tap to zoom and menu page of iPhone. The jury found Apple infringing on all three design patents, including the GUI patent.
The China have also started to grant design protection for GUI from 2014 with exceptions for gaming interfaces and website designs. Therefor each country grants design protection for GUI in some or the other way with varying scope. With these discrepancies, Japan and USA in 2019 made a proposal to WIPO’s Standing Committee for design protection for GUI. Where WIPO has been seeking member nations for their opinions.
The Designs Rules permits articles belonging to “Screen Displays and Icons” to be registered as design (this was added by India as part of convention member) and have acknowledged and granted design protection to monitor with GUI in 2006 for Microsoft and other foreign companies.
In 2011 Amazon tried applying for design protection for GUI, but the application was rejected stating that the Graphic Display Screen was a feature of the computer screen, and that it was only operational when the computer was turned on and thus criterion for constant eye appeal was not met. Post 2016, India’s position has changed, on looking at the communication to WIPO and on reviewing of published journal of patent office, it stopped granting design protection for GUI.
In 2020, UST Global Singapore Pte Ltd filed a design protection for ‘Touch Screen with GUI’ but it was rejected by patent office noting that it didn’t follow ‘industrial manufacturing process’. The same was appealed before the High Court of Calcutta, where it observed that “a software developer develops a source code which creates the GUI. This source code is then embedded in the micro-controllers and microprocessors and is displayed in screen by illuminating pixels by electronic means. Therefore, the design is applied to the article by industrial process” Hence the HC held application to be registrable. The court also noted that when countries such as USA and the European Union grants design for GUI, why did controller didn’t consider this and refused to grant.
Firstly, as there is a strong relation between GUI and FOSS coupled with open-design movement, we need more discussion as to how this might effect FOSS projects and what would be the permissible scope of GUI protection under design. Though the IP office stopped granting design protection for GUI, there is greater push at International (WIPO and obligation from convention) and national level arguing for broader protection. Additionally, judiciary interpreting the law without looking at freedom of designer and developer extensively and following the footsteps of USA makes it even worse.
I have tried to keep it to the context and looking for further discussion.