Legislative Implementation of Flexibilities - China

Title:	Patent Law of 12/03/1984 as last amended on 27/12/2008
Field of IP:	Patents
Type of flexibility:	Patentability or exclusion from patentability, of software-related inventions
Summary table:

Provisions of Law

No explicit provision of law.

Rule 4.2, Part II, Chapter I of the SIPO Guidelines of 2010

Rules and methods for mental activities

“Mental activities” refer to human's thinking movements. They originate from human's thinking, and produce abstract results through inference, analysis and judgment, or, via human's thinking movement, produce results by indirectly acting on the nature. Rules and methods for mental activities are rules and methods governing people's thinking, expression, judgment, and memorization. Because they do not use technical means or apply the laws of nature, nor do they solve any technical problem or produce any technical effect, they do not constitute technical solutions. Rules and methods for mental activities not only fail to comply with article 2.2, but also fall to be circumcise as provided in Article 25.1 (2). Therefore, rules and methods instructing people on how to perform this kind of activities cannot be granted patent rights.

In determining whether or not a claimed subject matter in a patent application involving rules and methods for mental activities is a patentable subject matter, the following principles shall be followed.

(1) If a claim concerns only rules and methods for mental activities, it shall not be granted a patent right. If a claim, except for the title of the subject matter, is defined by rules and methods for mental activities in the whole contents, in substance it concerns only rules and methods for mental activities, and it shall neither be granted a patent right. Examples include the following:

Method of examining patent application

Methods and system of managing organization, production, commercial activities, or economy, etc.;

Traffic rules, schedules, competition rules;

Methods of deduction, inference, or operations;

Rules of classifying books, methods of editing dictionary, methods of searching information, methods of classifying patents:

Rules and methods of editing calendar;

Operating instructions of an instrument or apparatus;

Grammar of various languages, rules of coding Chinese characters;

Computer languages, computing rules;

Short-cut arithmetic methods and relevant pithy formulae;

Mathematical theories and methods of conversion;

Methods of psychological test;

Methods of teaching, lecturing, training, and beast training;

Rules and methods of various games or entertainment;

Methods of statistics, accounting, or bookkeeping;

Music books, food recipes, or chess manuals;

methods of keeping fitness;

methods of disease survey and methods of population census;

methods of presenting information; and

computer program per se.

(2) Except the cases described above in point (1), if a claim in its whole contents contains not only matter of rule or method for mental activities but also technical features, then the claim, viewed as a whole, is not a rule or method for mental activities, and shall not be excluded from patentability under Article 25.

Rule 2(2), Chapter 9, Part II, SIPO Guidelines of 2010

Besides cases said in 1), if all the contents of a claim include not only rules and methods for mental activities but also technical features, for example, the contents defining the above mentioned devices for computer games include rules for games and technical features as well, then the claim as a whole is not rules and methods for mental activities, and shall not be excluded from patentability in accordance with Article 25.

In accordance with Article 2.2 “invention” in the Patent Law means any new technical solution relating to a product, a process or improvement thereof. An invention application relating to computer programs is the subject matter of patent protection only if it constitutes a technical solution.

If the solution of an invention application relating to computer programs involves the execution of computer programs in order to solve technical problems, and reflects technical means in conformity with the laws of nature by computers running programs to control and process external or internal objects, and thus technical effects in conformity with the laws of nature by computer running programs to control and process external or internal objects, or the effect obtained is not restrained by the laws of nature, the solution is not a technical solution as provided by Article 2.2, and is not the subject matter of patent protection.

For example, if the solution of an invention application relating to compute programs in order to perform control of an industrial process, a measurement or test process, completes a series of control during various stages of industrial process in accordance with the laws of nature through execution of a kind of industrial process control program by a computer, and thus industrial process control effects in conformity with the laws of nature are obtained, the solution is a solution as provided for in Article 2.2 and is the subject matter of patent protection.

If the solution of an invention application relating to computer programs involves execution of programs in order to process a kind of external technical data, completes a series of technical process on the technical data in accordance with the laws of nature through execution of a kind of technical data process program by a computer, and thus technical data process effects in conformity with the laws of nature are obtained, the solution is a solution as provided for in Article 2.2 and is the subject matter of patent protection.

If the solution of an invention application relating to computer programs involves execution of computer programs in order to improve the internal performance of computer system, completes a series of setting or configuration to parts of a computer system in accordance with the laws of nature through execution of a kind of internal performance improvement program by a computer, and thus internal performance improvement effects of the computer system in conformity with the laws of nature are obtained, the solution is a solution as provided for in Article 2.2 and is the subject matter of patent protection.