Since patents were traditionally intended to protect technical solutions such as those required for mechanical devices, it is still not possible to obtain a patent for a computer program per se. However, there are ways to include software in a patent application.
In 2020, the China National Intellectual Property Administration (CNIPA) revised its examination guidelines for software patents in light of artificial intelligence, Internet+, Big Data, and blockchain. In China, patents previously had to use technical means to solve a technical problem to achieve a technical effect. These technical means had to be executed by a physical device or hardware – the simple execution of an algorithm by a computer did not satisfy these requirements. If the requirement was met, the patent could be registered whether or not it included software. Since 2017, a computer-readable medium was also allowed as subject matter of the patent, which was already an improvement.
The current Patent Examination Guidelines (2021) provide for a two-step examination when considering whether an invention involving software is patentable. In the first step, it is examined whether the invention consists only of rules and methods for intellectual activities. If this is not the case, the second step is to examine whether the claims contain a technical solution. In this examination, the claim is considered in its entirety. This means that examiners must also consider non-technical features when assessing the inventiveness of a patent, provided they interact with the technical parts of the claim. This is particularly important for software-related patents, since for these patents the inventive step often does not lie in the technical features.
The examination guideline also provides some examples to clarify its content. CNIPA’s examples show that the new guideline can better protect inventions in the fields of artificial intelligence, Big Data, blockchain, e-commerce or IoT. It makes it easier to obtain a patent for software – the biggest hurdle is proving inventive step.