The State Intellectual Property Office of China (SIPO) has officially approved the proposed draft revisions to its current Examination Guidelines, which are set to come into effect on April 1, 2017.
In a continuous effort to meet increasing demands of technological innovations and to enhance patent protection thereof, on October 27, 2016, SIPO published proposed draft revisions to its Examination Guidelines, to solicit public opinions. An introduction of the draft revisions was included in our previous newsletter. On February 28, 2017, SIPO announced that the draft revisions have been officially approved and will come into effect on April 1, 2017.
As discussed before, the revisions to the Guidelines deal with a number of aspects, two of which merit special attention.
(i) For business method related inventions, which used to be classified as a type of "mental activity" and, thus were excluded from patent protection, the revisions of the Guidelines note that "[i]f a claim related to a business model involves not only content of business rules and methods but also technical characteristics, it shall not be excluded from the possibility of being granted a patent right according to Article 25 of the patent law". The revisions to the Guidelines thereby intend to clarify that a technical solution, as long as it involves technical characteristics, shall not be excluded from patent eligible subject matter, merely because it relates to business models.
(ii) For software related inventions, claims directed to data carriers, i.e., a computer readable storage medium, which embodies computer program or computer code executable by a computer for performing the functionality of a software product, now falls within the category of patent eligible subject matter, as per the revisions to the Guidelines. Therefore, patent protection for software related inventions in China can be sought from broader perspectives.
The revisions to the Guidelines are, undisputedly, positive indications of SIPO's favorable patent protection of business method and software related inventions. It is believed that upon becoming binding guidelines, these revisions may pave the way for better enforceable patent rights in China, and place China as a leading jurisdiction insofar as patents for such inventions are granted. Although it remains to be seen how the revised Guidelines will be adopted by Chinese examiners in future practice, patent applicants should take these positive indications of SIPO into consideration with respect to their global market development and related IP strategies.