Elgar Intellectual Property Law and Practice series
Edited by Stefan Luginbuehl and Peter Ganea
Chapter 6: SOFTWARE-RELATED INVENTIONS
The Patent Act of the People’s Republic of China (hereinafter ‘Patent Act’) entered into effect in 1985. Within less than 30 years, rapid development in computer technology has raised a number of questions with regard to software-implemented inventions. In China, as there is not yet much case law on software patents, the majority of concerns lie in the area of patent prosecution, in particular with respect to eligibility for protection, inventiveness of claims which contain technical as well as non-technical features and specific claim forms which are based on flow diagrams of computer programs. As the corresponding provisions are still in the course of improvement and examiners are still accumulating experience in this area, the present system can hardly be regarded as mature and so the following explanations will concentrate on the above three issues. As to the question of whether a software-related invention is patentable, Article 2(2)which defines the term ‘invention’ and Article 25 which excludes certain subject matter from patentability, are the most relevant provisions. Article 2(2) refers to ‘technical solutions’ as subject matter eligible for protection; Article 25(1) No 2 excludes rules and methods for intellectual activities from protection. Whereas the Patent Act remains silent on software-related inventions, the SIPO Examination Guidelines (hereinafter ‘Guidelines’) provide more detailed provisions on this issue. First of all, they provide a definition of ‘technical solution’, as an ‘aggregation of technical means applying the laws of nature to solve a technical problem’. Secondly, they define ‘rules and methods for intellectual activities’ as ‘rules and methods governing people’s thinking, expression, judgment and memorization’.
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