China – Patent law in the Asia Pacific region

Patent laws in the region vary in their effectiveness. Regulations across jurisdictions to crack down on infringers are in a constant state of renewal and revision in order to stay ahead of those who steal intellectual property. Keeping the trolls at bay depends on staying abreast of regional developments in patent law

CHINA

Although the Chinese Patent Law per se has not been changed since 2008, the Guideline for Patent Examination in China has been revised three times since its enforcement on 1 February 2010. The most recent revision of the guideline came into force as of 1 April 2017, bringing some significant developments in the patent practice.

Outline of changes in the guideline:

• Examination of inventions relating to business models – more friendly;
• Examination and protection of inventions relating to computer programs – more allowable subject matter and ways of claim drafting;
• Amendment during patent invalidation procedure – more flexibility;
• Examination of post-filing experimental data – allowed for proving sufficient disclosure;
• Content allowed for consultation and photocopying – more content for consultation and photocopying;
• Time limit of suspension due to execution assistance of property preservation – fewer limitations.

Business model inventions

In recent years, development of computer technology, especially internet technology, has effectively promoted the innovation of business models in various industries. In order to meet the demands of innovators for patent protection for innovation outcome relating to novel business models combined with computer technology, and to encourage such innovation, the revised guideline clearly provides that, “if a claim related to a business model involves not only content of business rules and methods but also a technical feature, it must not be excluded from the possibility of being granted a patent right according to article 25 of the patent law”.

The guideline thus intends to clarify that a solution, as long as involving a technical feature, must not be excluded from the patent-eligible subject matter merely because it relates to business models.

With this revision, the examination for business model-related inventions will mainly consider the novelty and inventiveness of the inventions. But we still have to wait and see the standard of evaluating the inventiveness of such inventions in future patent practice.

Software-related inventions

According to past examination practice in China, computer programs and carriers (computer-readable storage media) characterized only in computer programs are patent-ineligible subject matters. The revised guideline now emphasizes that computer-readable storage media that are patent-ineligible subject matters are limited to computer readable storage media that are merely defined by recorded programs per se, where the addition of the word “per se” intends to distinguish a sequence of instruction codes from a solution based wholly or partially on a program processing flow.