Patent Protection for AI in China: New Guidelines and References

The number of Chinese patent applications in the field of artificial intelligence is growing rapidly – the bottom line is that companies based in China have filed more than 440,000 AI patents by October 2019. Applicants are mostly large companies such as Baidu, Alibaba, Tencent, Inspur and Huawei as well as universities or research centers, most notably Xidian University and Zhejiang University. They focus on computer technology, automated driving, robotics and medical technology, important applications are in deep learning, speech recognition and speech processing.

Although pure algorithms are only rules and methods for intellectual activities in China and as such not protectable, China has always tried to protect AI by patents. The Patent Examination Guidelines in 2020 have added provisions relating to the examination of patent applications containing algorithmic features or business rules and methods, namely patent applications related to AI, Internet+, Big Data and Blockchain. The Supreme People’s Court of the PRC has published 10 typical cases on the above-mentioned software-related topics, which serve as a reference.

In order to better protect own inventions in the field of AI by patents in China, we recommend foreign companies to use these guidelines and reference documents when drafting a patent and thus avoid mistakes that could lead to the rejection of the patent application. If protection as a patent is not desired, for example, because the algorithm of the AI is not to be disclosed and/or the patent would disclose confidential information, the algorithm and corresponding confidential information can be protected as a trade secret instead of the patent.

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