㸯 Actual Conditions ofGraphic Design Development Methods (*)
In recent years, due to rapid progress in IT introduction and digitization as well as media diversification,
the importance of graphic designs has grown dramatically higher than ever.. Under such circumstances,graphic design development methods are likely to have changed drastically. In January, 2014, the Design
System Subcommittee, Intellectual Property Committee, Industrial Structure Council pointed out, as review ofthe development of operational infrastructure that supports the design system, the need to indicate theexamination standards on graphic designs more clearly and the need for the Japan Patent Office (JPO) to
provide necessary information for enabling business operators to determine whether or not clearance searches
must be conducted. In particular, since determination of creative difficulty is carried out on the basis of aperson ordinarily skilled in the art of the design, it is necessary to reveal the actual conditions of graphic
design development in order to make clearer the standard for determining the creative difficulty of graphic
designs in the Design Examination Standards. Based on the above, this research was conducted to investigate
the latest graphic design development methods or the like and to collect basic information so as to study how
the Design Examination Standards can be revised to make them clearer and better suited to the latest
conditions of design development.

Ϩ Introduction
In recent years, due to rapid progress in IT
introduction and digitization as well as media
diversification, the importance of graphic designs
has grown dramatically higher than ever, withincreasing moves to differentiate products or
improve the usability of equipment through active
use of graphic designs. Under such circumstances,graphic design development methods are likely tohave changed drastically with the emergence oftools for easily developing advanced graphic
designs and the spread of license-free designmaterials among other factors.
To date, discussions have been held on thedesirable system for protection of graphic designs.
On January 31, 2014, the report “Support forJapanese Companies to Expand Their Businesses
Overseas by Protecting Rights on Creative
Designs”1 was compiled at the third meeting of
the Design System Subcommittee. The report
indicated the future direction for studying thedevelopment of not only the legislative
framework, but also operational infrastructurethat supports the design system. The report also
pointed out the need to indicate the examination
standards on graphic designs more clearly than
before and the need for the Japan Patent Office(JPO) to provide necessary information forenabling business operators to determine

whether or not clearance searches must be
conducted.
In particular, since determination of creative
difficulty is carried out on the basis of a person
ordinarily skilled in the art of the design(hereinafter referred to as a “person skilled in theart”), it is necessary to reveal the actual
conditions of graphic design development in orderto make clearer the standard for determining thecreative difficulty of graphic designs in the
Design Examination Standards.
Based on the above, the following research
was conducted so as to investigate the latest
graphic design development methods, etc. of aperson skilled in the art and to study how the
Design Examination Standards can be revised tomake them clearer and better suited to the latest
conditions of design development.
The actual conditions of graphic design
development were investigated and analyzed
through research on information published in andoutside Japan including books, academic articles,
reports and Internet information.
In addition, in order to ascertain information
on matters such as the entities engaged ingraphic design development, the specific products,
functions, design creation methods and tools, anddetermination of creative difficulty by a person
skilled in the art, a questionnaire survey was
conducted on 3,275 samples (3,069 companies,(*) This is an English summary by the Institute of Intellectual Property based on the FY2014 JPO-commissioned
research study report on the issues related to the industrial property rights system.

IIP Bulletin 2015 Vol.24● 2 ●175 design firms and 31 universities in Japan),and responses were obtained from 618 samples.
Also, in order to identify such details as theactual conditions of graphic design development
and the background of determination of creative
difficulty, interviews were held with 34 samples
extracted from the respondents to the domestic
questionnaire survey.

ϩ Current design system relating
to determination of creative
difficulty of graphic designs
1 Outlines of the Current System(1) Design Act2
In Japan, Art. 2(1) and (2) of the Design Act
provide for the definition of a “design.”
As the requirements for design registration,
the respective items of Art. 3(1) of the Design
Act provide for novelty, and Art. 3(2) Act provides
for creative difficulty.
(2) Design Examination Standards3(i) Graphic image subject to protection andrequirements for description of the design(application and drawing)
In Japan, graphic images subject toprotection and requirements for description of thedesign are specified in the Design Examination
Standards as follows.
(a) Graphic image subject to protection
1) Graphic image displayed
A graphic image complying with therequirements
underPart VII
Individual
Applications for Design Registration, Chapter IV
Design Including a Graphic Image on a Screen,
74.1(1) and (2) is regarded as subject toprotection under Art. 2(1) of the Design Act.
2) Graphic image that is provided for use in theoperation of the article
A graphic image complying with therequirements under Part VII, Chapter IV, 74.2 (1),(2) and (3) is regarded as subject to protection
under Art. 2(2) of the Design Act.
(b) Requirements for Description of the design(application and drawing)
When applying for design registration for adesign including a graphic image, the applicant
must pay attention for the statement in theapplication, especially to the following: 74.3.1 (3)Statement in the column of “Description of the
Design” and (4) Statement in the column of“Description of Article to the Design”(ii) Examples of a design that could have been
easily created listed in the current Design
Examination Standards
In 74.5.3 Creative difficulty of the Design
Examination Standards, the following examples ofa design that could have been easily created arelisted:(a) Design of replacement(b) Design of aggregation(c) Design constituted by changing the layout(d) Designs constituted by changing thecomponent ratio or by increasing or
decreasing the number of units of acontinuous constituent element(e) Design that merely represents shapes,
patterns or colors, or any combinations
thereof, that were publicly known, almost as
they are(f) Design that is constituted merely bychanging the mode of frame division(g) Design that merely represents a mode ofchange by an ordinary technique, based onshapes, patterns or colors, or any
combinations thereof, that were publicly
knownϪ Actual conditions of graphic
design development
1

Positioning of graphic designs in
product development
Graphic designs are becoming more andmore important in product development. As aresult, today the staff in charge of design often
participate in the product development processfrom the planning phase. There is also a trend
that, in graphic design development, particularfocus is placed on an easily-to-understand structure,easy operation, and easily-to-understand notation.
On the other hand, in the survey results,
relatively few respondents opined that they
pursued originality. This suggests the reality
where business operators are developing graphic
images by prioritizing better operability andusability over decorative expressions, in order toachieve the user-friendliness sought by users.
One of the matters that are taken into
account in the development of graphic designs,
particularly graphical user interfaces (GUIs), isthat they are created with consideration to theirfunction and usage. This is because a GUI is not amere display of an image, but an interface for
performing the sought function. It is found that● 3 ●IIP Bulletin 2015 Vol.24

developers first consider the purpose of use of
the GUI and the purpose of the operation, andthen consider the specific graphic design based on
those purposes.
2

Influence of environmental changes ondevelopment(1) Tools for graphic design development
In graphic design development, so-calledgraphic software is generally used whendeveloping graphic designs from scratch, that is,when starting from the creation of graphic data.
Such software has various functions for making avariety of expressions (e.g., a rectangle drawing
tool, a coloring tool and an object-aligning
function), and a developer creates graphic data by
applying multiple functions.
There are also cases where a developer
develops graphic designs by combining alreadyavailable GUI components as needed. For
instance, software called an “integrated
development environment” provides a tool fordrag-and-drop arrangement of GUI components,
enabling development to illustrate the same GUIs
as users will see.
(2) Influence of the spread of mobile
terminals
The diffusion rate of mobile terminals,
particularly smartphones, has surged over the
past few years, and users have become familiar
with smartphones with touch display panels.
Users who became accustomed to that
operational feeling began to seek a similar
operational feeling in other products as well. In
response, companies have come to secureuser-friendliness by adopting this type of
popularized user interface. In addition, theperformance of smartphones themselves has also
improved, and the variation of expressions has
expanded.
(3) Design guidelines
Here, design guidelines refer to theguidelines offered by an OS supplier which clarify
designs that are easy for users to use in line withthe appearance and specifications of the OS. In
order to provide such ease of use, companies thatdevelop and provide applications on a certain OS
platform have tended to carry out development
while referring to design guidelines.
With regard to the influence of design
guidelines, a majority of respondents in thissurvey indicated that design guidelines were only
a guide, and there was room for them to

IIP Bulletin 2015 Vol.24

demonstrate creativity, rather than stating thatdesign guidelines restrained design development.
(4) Other environmental changes
In addition to the above, some respondents
mentioned that the modes of dynamic expression
and screen transition have become more
important than in the past as a presentation
technique, and some others opined that the
emergence of cloud services resulting from thedevelopment of web technology has also
influenced the development of graphic designs.
3

Summary
Graphic designs serve as a major factor that
contributes to enhancing product appeal andcorporate image and differentiating one’s productfrom the products of others. With the expanding
use of information equipment, such as
smartphones, graphic designs have become more
important than ever in product development inrecent years.
Meanwhile, since graphic designs function as
an interface between equipment and humans,
they are being actively created with consideration
to improved operability and usability rather thandecorative expressions. There is common
awareness that this aspect will be the key indifferentiating one’s product from the products ofothers.
As for the actual conditions of development,
many companies carry out development using
GUI components and development complying
with design guidelines provided by the supplier of
the OS or platform. In particular, with regard todesign guidelines, many companies comply withthe guidelines in order to make their graphic
designs consistent with the operational interface
that users are familiar with, and add their original
creations thereto. At the same time, there arealso companies that develop graphic designs bythemselves from scratch and achieve both
improved operability and originality in appearance,
and use this aspect as a strong point of theirproduct.
Both the former companies and the lattercompanies carry out design development in linewith the usage and function that are sought ingraphic designs as a premise. Therefore,
companies desire that the evaluation anddetermination required for graphic design
protection be conducted while taking into accountsuch usage and function of the graphic designs.
Also, many companies hoped that there was ameans to highlight any new unconventional● 4 ●the number of units of a continuous
constituent element 㸩 change in layout”

feature of the graphic design upon filing a design
application for it.

ϫ Assumed categories of creativityof graphic designs and opinions
obtained1

Survey method and assumed categories
In the questionnaire survey, case examples
were prepared by combining the following sevencategories of creativity and case examples givenin the conventional Design Examination
Standards, and opinions were collected byindicating those case examples.
(1) Category 1 “Digitization of a real object”(2) Category 2 “Making the mode of change of areal object into a GUI”
(3) Category 3 “Conversion of the graphic
design of an article/function to anotherarticle/function”(4) Category 4 “Mode of change in form”(5) Category 5 “Constitution of a screen image
by only using existing GUI components”(6) Category 6 “Simplification of display
elements”(7) Category 7 “Addition of colors or patterns”(8) Category combination 1 “Constitution of ascreen image by only using existing GUI
components 㸩addition of colors or
patterns”(9) Category combination 2 “Change in thecomponent ratio 㸩 addition of colors or
patterns”(10) Category combination 3 “Making the modeof change of a real object into a GUI +addition of colors or patterns”(11) Category combination 4 “Simplification of
display elements + change in the component
ratio or increase or decrease in the number ofunits of a continuous constituent element”(12) Category combination 5 “Simplification of
display elements 㸩 conversion to anotherarticle + change in the component ratio or
increase or decrease in the number of units ofa continuous constituent element”(13) Category combination 6 “Conversion toanother article or to multiple usages + modeof change in form”(14) Category combination 7 “Making a real
object into a graphic image 㸩 conversion toanother article or to multiple usages +aggregation”(15) Category combination 8 “Simplification of
display elements 㸩change in thecomponent ratio or increase or decrease in

2

Survey result
For each question, the percentages of those
who responded “easily conceivable” and those
who responded “not easily conceivable” and thepercentages of the respective reasons selected
for each response were organized and theirtendencies were analyzed.
The tendencies that were present or absent
in the responses and the reasons therefor were
sorted out and summarized for each question.
(1) Questions for which many respondents
answered that the graphic design was
regarded to be easily conceivable byany person skilled in the art, and thetendencies in the answers given(i) Making a real article into a graphic image(ii) Conversion of a graphic image to anotherarticle(iii) Constitution of a screen image by only using
existing graphic image components(iv) Simplification by partial omission(2) Change that is regarded to be easily
conceivable by a person skilled in theart(i) Addition of a drop-down menu to the part formaking a selection(ii) Insertion of gaps between elements orchange of the gap width(iii) Partial deletion of constituent elements(iv) Rounding of corners(v) Change in the component ratio(vi) Change or addition of color(vii) Compliance with the specifications of thedefault design guidelines(3) Mode of change that is regarded to beeasily conceivable by a person skilledin the art(i) Enlarged display of the selected part(ii) Embossed display of the selected part(iii) Engraved display of the selected part(iv) Display of detailed information, etc. in aballoon(v) Change of color(vi) Compliance with the specifications of thedefault design guidelines(4) Mode that is not regarded to be easily
conceivable by a person skilled in the art(i) Mode of change that is not normally seen or● 5 ●IIP Bulletin 2015 Vol.24

a mode of change that involves ingenuity(ii) Making a mode of change that differs fromreality into a graphic image(iii) Color expression that involves ingenuity(iv) Pattern expression that involves ingenuity

Ϭ Conclusion
1

Viewpoint of evaluation of creative
difficulty considering the actual conditionsof graphic design development
Considering the actual conditions of graphic
design development, evaluation of the creative
difficulty of a graphic design needs to be
conducted after precisely identifying its usage
and function. In addition, if an unconventional
visual effect has been created as a new
characteristic of a graphic design based on suchusage and function, such unconventional effectshould be appropriately evaluated. In doing so,
one idea is to encourage more active use of thefeature statement voluntarily submitted by theapplicant, in addition to the statement in theapplication and drawings.
Suggestions concerning evaluation ofcreative difficulty (whether or not an
ordinary technique is used) of graphic
designs
When evaluating the creative difficulty of agraphic design, that is, a design including agraphic image on a screen, the following
indicators could be used in addition to the current
examination standards.

button), the question of whether or not thedetailed usage of the original article and that of
the graphic image are the same is irrelevant.
(ii) Conversion of a graphic image to anotherarticleDesign that has merely converted a graphic
image of a certain article to a graphic image ofanother article almost as it is(a) Target of application
Design that has merely converted a graphic
image displayed on the display part of a certain
article to all or part of a graphic image of anotherarticle.
(b) Requirements for application
The usage and function of the originalgraphic image and those of the converted graphic
image must be the same.
The question of whether or not the art of thedesign (field of the article) of the original design(article to the design) and that of the converted
design (article to the design) are the same isirrelevant.

2(1) Examples of newly assumed designs
that are found to be designs of agraphic image on a screen that would
have been easily created(i) Making a real article into a graphic image
Design that merely represents the appearance ofa real object almost as it is(a) Target of application
Design in which all or part of the graphic
image merely represents the appearance of a realarticle or the mode of change in its form(b) Requirements for application
The usage and function of the original article(including a part of an article) and those of thegraphic image must be the same.
When the original article (including a part ofan article) evokes a general-purpose usage (e.g., anumerical input button or a selection/determination

IIP Bulletin 2015 Vol.24(iii) Constitution of a screen image by only
using existing graphic image components
Design that has merely been constituted byusing existing graphic image components and byadopting a regular layout(a) Target of application
Design that has merely been constituted byusing existing widgets (GUI components) or
rectangular sections and by adopting a regularlayout according to the use and function (required
function) of the graphic image.
(b) Requirements for application
The design must use existing widgets (GUIcomponents) or rectangular sections asconstituent elements of the graphic image. The
design must adopt a layout that is ordinary for thesame type of graphic images, a regular layout
according to the usage and function (required
function) of the graphic image (including a layoutthat has been applied as a metaphor) or a mere
vertical or horizontal alignment (including
multiple rows).
(iv) Simplification by partial omission
Design that has merely deleted partial collective
section elements from a graphic image
constituted by multiple section elements● 6 ●(a) Target of application
Design that has merely deleted partial
collective section elements from a graphic image
that was publicly known and that was constitutedby multiple section elements.
(b) Requirements for application
The original graphic image that was publicly
known must be constituted by multiple section
elements, and only partial collective sections
must be deleted therefrom.
The usage and function of the originalgraphic image and those of the graphic image inquestion must be the same.
The question of whether or not the art of thedesign (field of the article) of the original graphic
image and that of the graphic image in question
are the same is irrelevant.
(2) Examples of change of a detailed part,etc. by an ordinary technique
Considering the actual conditions of creating
designs of a graphic image on a screen, thefollowing changes in form may be regarded to beordinary techniques and to be easily conceivable
by a person ordinarily skilled in designs of agraphic image:(i) Change in the shape of a detailed part(ii) Addition of color(iii) Others- Simple compliance with the specifications
designated by the default design guidelines- Simple combination of elements (i) and (ii)
above

3

Opinions of users concerning protectionof designs representing a graphic
designThe respondents were highly interested indesigns representing a graphic design, andvarious opinions were obtained. The respondents
were generally in support of clarifying the Design
Examination Standards. Also, many respondents
desired that not only the simple drawings, butalso the purpose, intention and background ofcreation be taken into consideration in
determination of creative difficulty.
Meanwhile, many respondents expressedhopes that protection of graphic designs would
not be implemented in a manner that would
hinder development activities, suggesting theirwish to secure freedom of product development.
Various other opinions were also mentioned
in relation to the scope of a design right anddesign ingenuities that could become Japanesecompanies’ forte.
(Researcher: Takashi ABE)1

http://www.jpo.go.jp/shiryou/toushin/toushintou/design_chizai.htm (Japanese only)2
http://www.japaneselawtranslation.go.jp/law/detail/?ft=
2&re=01&dn=1&yo=&ia=03&x=11&y=13&kn[]=%E3%81%84&ky=&page=6
3
JPO Design Examination Standards
http://www.jpo.go.jp/tetuzuki_e/t_tokkyo_e/design_es.htm(3) Examples of formative change by an
ordinary technique
Considering the actual conditions of creating
designs of a graphic image on a screen, thefollowing formative changes may be regarded to
be ordinary techniques and to be easily
conceivable by a person ordinarily skilled indesigns of a graphic image:(i) Change in shape(ii) Change in color(iii) Others- Simple compliance with the specifications
designated by the default design guidelines- Simple combination of elements (i) and (ii)above
As points to consider in all of cases (1), (2)and (3), there are multiple viewpoints based on
which new, unconventional visual effects should
be recognized when determining that a design
cannot be regarded to be easily conceivable.
● 7 ●IIP Bulletin 2015 Vol.24