4.7.2 Examination of a patent’s subject matter
4.7.2.1 The subject matter of invention and utility model patents
Article 2 paragraphs 2 and 3 of the Patent Law define inventions and utility models, respectively: “‘Invention’ means any new technical solution proposed for a product, a process, or the improvement thereof. ‘Utility model’ means any new technical solution proposed for the shape, the structure, or their combination, of a product, which is fit for practical use.”
4.7.2.2 Circumstances where no patent shall be granted
4.7.2.2.1 Violation of the law or of social morality, or detrimental to public interests
Article 5 paragraph 1 of the Patent Law stipulates the following: “No patent shall be granted for invention-creation that violates laws or social morality or is detrimental to the public interests.” In this paragraph, “violates laws” means that the purpose of the invention is against the law. Where the purpose of the invention does not violate the law, but its abuse may be contrary to the law, the invention will not be excluded from patent protection.
4.7.2.2.2 Violation of regulations related to genetic resources
Article 5 paragraph 2 of the Patent Law specifies the following: “No patent right shall be granted for invention-creation where the acquisition or utilization of the genetic resources, on which the development of the invention-creation relies, violates the provisions of laws and administrative regulations.” This provision was added in the 2008 Patent Law.
4.7.2.2.3 Circumstances stipulated in Article 25 of the Patent Law
According to Article 25 of the Patent Law,
[N]o patent right shall be granted [for]:
- (1) scientific discoveries;
- (2) rules and methods for intellectual activities;
- (3) methods for the diagnosis or treatment of diseases;
- (4) animal and plant varieties species; [and]
- (5) nuclear transformation methods and substances obtained by means of nuclear transformation.
Regarding the invention of the medical use of chemical substances, in a retrial of an administrative dispute over the invalidation of an invention patent right, Cubist Pharmaceuticals v. Patent Reexamination Board,136 the Supreme People’s Court held that an application related to the medical use of a substance shall not be granted if its claims are drafted using the wording “for the treatment of diseases,” “for diagnosis of diseases” or “use of substance X as a medicament” because such claims are ones for “method for the diagnosis or treatment of disease” as referred to in the Patent Law. However, since a medicament and its method of manufacture are patentable, an application related to the medical use of a substance adopting a pharmaceutical or use claim in the form of “use of a substance for the manufacturing of a medicament” or “use of a substance for the manufacturing of a medicament for the treatment of a disease” is not excluded by the Patent Law.