China: Patent Guidelines for Examination – changes for AI, big data and software


On 21 December 2023, along with revised implementation rules for patent law, the China Intellectual Property Administration (CNIPA) issued an updated Guidelines for Patent Examination (the Guidelines). The changes and inclusions in the Guidelines mark an expansion of patent allowances to incorporate current technological advancements, and in anticipation of future developments.

For a summary of the revised Rules for the Implementation of the Patent Law and the Guidelines for Patent Examination, see our previous article here. For any enquiries with your patent applications in China, we encourage you to reach out to our team.

Below we discuss the key changes, particularly for computer-implemented inventions (CII) and Big Data. The Guidelines are set to take effect on 20 January 2024.

I. Expanded definition of Non-Diagnostic Methods  

Diagnostic methods are ineligible subject matter in China. To help examiners differentiate between diagnostic methods and non-diagnostic methods, the Guidelines provide a list of examples for non-diagnostic methods (“inventions that are not diagnostic methods”). The list has now been expanded to include “information processing methods where all steps are executed by devices such as computers”.

The current amendment aims to promote innovation and patent protection in the smart medical field, through information processing methods executed by devices like computers.

II. New subject matters related to computer programs (software)

The updated Guidelines now explicitly allow protection for two new categories of subject matters related to computer programs, i.e. computer readable storage media and computer program products. “Computer program product” refers to a software product implementing a solution primarily through a computer program.

Following this amendment, eligible subject matters can now include “a method,” “a computer device/apparatus/system,” “a computer-readable storage media,” “a computer program product”, etc.

III. Examination on Eligible Subject Matter for AI and big data algorithms

The Guidelines also introduce two new scenarios where artificial intelligence (AI) and big data algorithms can be an eligible subject matter under Article 2.2 of the Patent Law.

  1. AI and/or big data algorithms can be considered an eligible subject matter when:
    • the involved algorithm has a specific technical relationship with the internal structure of a computer system, and
    • can solve a technical problem to improve the internal performance of the computer system that confirms to the laws of nature.

    The internal performance as mentioned includes not only the hardware structure, but also data storage and data scheduling of the computer system.

  2. Another scenario to be an eligible subject matter is when the solution of the claim aims to process big data in the specific application field by:
    • using the internal relationships in the data mining that conforms to the laws of nature,
    • solving the technical problem of how to improve the reliability or accuracy of big data analysis in the specific application field, and achieving corresponding effects.

IV. Examination on inventiveness for AI and big data algorithms

Examiners are also explicitly instructed to consider algorithms and business methods/rules when evaluating inventiveness of the claims:

  1. Algorithmic features supporting technical functions

    If the algorithm in a claim has a specific technical relationship with the internal structure of the computer system and improves its internal performance, it should be considered during the inventiveness review.
  2. User Experience improvement

    If technical features, algorithm features, or business rule and method features can mutually support and interact to improve user experience, this improvement should be considered during the examination of inventive step. Some features of the user experience that can be considered includes operation comfort, sensual pleasure, shorter waiting time, etc., therefore reflecting the objective technical effect rather than subjective preference.

How we can help

Our attorneys in China have expertise across a range of disciplines and technologies to assist in navigating the CNIPA Guidelines and Implementation rules for Chinese Patent Law. If you or your clients have patent application requirements for China, or questions regarding these changes, please reach out to the team.

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