Revised Guidelines for Patent Examination have now been issued by the State Intellectual Property Office. These new regulations have been designed to both boost China’s bid to develop a more innovation-driven economy and to bring the country’s patent approval system into closer alignment with international norms.
Throughout China, the granting of patents has soared in significance over recent years, driven by a series of accelerated developments in the digital sector and the continued cross-fertilisation of innovative solutions across a variety of economic and social sectors. This has led to concerns by a number of pioneering business and individuals that the existing patent legislation was inadequate when it came to safeguarding many of these fresh ideas and new approaches.
In terms of particular revisions, these latest guidelines cover certain areas deemed to be exempt from patent protection and provide greater specifics with regard to software-related invention patents.
In an effort to further enhance protection of Intellectual Property Rights (IPRs) and to promote implementation of the innovation-driven development strategy, the State Intellectual Property Office (SIPO) of China has revised its Examination Guidelines for Patents, which will come into force as of April 1, 2017.
The revised Guidelines include the patent eligibility of computer softwareand business method, the acceptability of post-filing experimental data for chemistry inventions, the rules of claim amendments during patent invalidation procedures, and the availability of public access to patent documentations. Notably, the revisions may lift the long standing curbs on software patents.
Below is the revised Guidelines for patent examination by SIPO:
1. Software patents
"Computer program per se" is different from "inventions relating to computer program". The former belongs to rules and methods for mental activities and is ineligible for patent protection, while the latter is patentable. A software claim may be drafted in a form of "medium plus computer program process" or as an apparatus claim including a component implemented by a computer program.
2. Business method
If a claim relating to business model includes not only business rules or methods, but also a technical feature, it should not be excluded from being patentable under Article 25 of the Chinese Patent Law.
3. Chemistry inventions
Experimental data submitted after the filing date shall be considered and examined, though it can only be used to prove technical effects that are obvious for those skilled in the art from the original disclosure.
4. Claim amendment in invalidation procedure
Applicant is allowed to amend claims by incorporating one or more limitations from other claims and to correct obvious errors in the claims.
5. Public accessibility to patent application documents
The public are allowed to review and copy application documents including Office Actions, Search Reports and Decisions issued by the SIPO before the application is granted.
It is believed that the SIPO will become more transparent and flexible in the procedures of examining, granting and invalidating the patents/applications than before, under the new Examination Guidelines for Patents. (from HKTDC)
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