Invention patent applications involving new technologies such as artificial intelligence, or involving new formats, new fields are distinctly different from other invention patent applications, the characteristic of which is, besides technologies, rules and methods for mental activities such as algorithms or commercial methods are generally included in their invention solutions. In November 2019, CNIPA issued the draft amendment of Chapter IX of Part II of the Guidelines for Patent Examination (Draft for Comments), which specifies the examination rules for such applications in detail and interprets them through typical cases.

The draft amendment in particular adds a section 6 to Chapter IX of Part II to clarify the patent-eligible subject matter, novelty and inventiveness, and the writing of claims and specifications for such applications in the light of specific cases. The main amendments are as follows:

(1) It is emphasized that the technical and algorithmic characteristics, commercial rules and methodological features should not be simply separated in patent examination.

In Section 6.1, "Standard of Examination", the general principles of various provisions of the examination are established: "In the examination, technical features and algorithms or commercial rules and methodological characteristics should not be separated, but all the contents recorded in the claims should be taken as a whole to analyze the technical means involved, the technical problems solved and the technical effects generated."

(2) It is defined that a claim should not be excluded in accordance with Article 25 of the Patent Law if it contains technical features.

If the claim contains technical features in addition to algorithmic features or commercial rules and methods, the claim is not a rule or method of intellectual activities as a whole, and the possibility of obtaining a patent right should not be excluded in accordance with Item (2) of Paragraph 1 of Article 25 of the Patent Law.

(3) The examination standard of Article 2 of Patent Law is clearly defined.

For the judgment of whether or not it constitutes a technical scheme, the examination standard is further refined under the "three-element" judgment method of technical problems, technical means and technical effects in the General chapter of the Guidelines. As long as the algorithm can be combined with specific technical application fields to solve a certain technical problem, it can pass the examination of Article 2 of the Patent Law.

(4) The technical contributions to inventiveness made by the algorithm features and the commercial rules and method features that functionally support and interact with the technical features are to be taken into account.

When carrying out inventiveness examination of an application for invention patent that includes both technical features and algorithm features or commercial rules and methods, the algorithm features or commercial rules and methods that functionally support and interact with the technical features should be considered as a whole. The draft amendment further explains its meaning.

(5) 10 additional cases of examination on patent-eligible subject matters and inventiveness are added from both positive and negative aspects The themes of the 10 cases are as follows:

1. A method for establishing a mathematical model.

2. A method for training a convolutional neural network model.

3. A method for using shared bicycles.

4. A communication method and device for blockchain nodes.

5. A consumption rebate method.

6. An economic prosperity index analysis method based on electricity consumption characteristics.

7. A humanoid robot fall-detection method based on multisensor information.

8. A multirobot path-planning system based on coevolution and a multipopulation genetic algorithm.

9. A logistics distribution method.

10. A method for visualizing the evolution of dynamic viewpoints.

Example 1 is an abstract model-building method, which does not involve the combination with specific application fields and does not contain technical features. It belongs to the rules and methods of intellectual activities stipulated in Item (2) of Paragraph 1 of Article 25 of the Patent Law. Examples 2, 3, and 4 are patent-eligible subject matters in artificial intelligence, business methods, and blockchains, while Examples 5 and 6 are negative examples. Examples 7 and 9 are cases with inventiveness as a result of cases considering algorithmic features or commercial rules and methods and technical features that functionally support and interact with the technical features as a whole. Examples 8 and 10 are cases that do not have inventiveness because the corresponding contents have been disclosed in the reference documents.

(6) More Detailed Requirements for Specifications and Claims

The specification writing requirements are further refined, for example, how to combine the algorithm with specific technical fields and specify the user experience effect. In the writing of claims, it is emphasized that claims should state the technical features and the algorithms or commercial rules and methods that functionally support and interact with the technical features. Source:Http://www.sipo.gov.cn/gztz/1143646.htm

Draft consultation notice: https://www.cnipa.gov.cn/art/2019/11/12/art_78_110919.html