Examination criteria for applications for invention patents involving computer programs
The examination shall be aimed at the claimed solution, that is, the solution defined in each claim. According to Item (2) of Paragraph 1 of Article 25 of the Patent Law, no patent right is granted to the rules and methods of intellectual activities. Invention patents related to computer programs
If the application falls under the circumstances described in Section 4.2 of Chapter 1 of this part, it shall be reviewed according to the principles of this section:
(1) If the claim only relates to algorithms or mathematical calculation rules, or the computer program itself or the computer program only recorded on the carrier (such as magnetic tape, disk, optical disk, magneto-optical disk, ROM, PROM, VCD, DVD or other computer-readable media), or the rules and methods of games, then the claim belongs to the rules and methods of intellectual activities and does not belong to the object of patent protection.
If a claim only relates to an algorithm or mathematical calculation rule, or the program itself, or the rules and methods of the game, except for its subject name, the claim essentially only relates to the rules and methods of intellectual activities and does not belong to the object of patent protection.
For example, a computer-readable storage medium or computer program product limited only by recorded programs, or a computer game device limited only by game rules and not including any technical features, such as not including any physical entity features, does not belong to the object of patent protection, because it only involves the rules and methods of intellectual activities in essence. However, if the medium claimed in the patent application involves the improvement of its physical characteristics, such as stacking structure, track spacing, materials, etc. , does not belong to this category.
(2) Except for the above-mentioned situation (1), if a claim contains both the contents of rules and methods of intellectual activities and technical features in all the contents defining it, the claim as a whole does not belong to the rules and methods of intellectual activities, and the possibility of obtaining a patent right should not be ruled out according to the provisions of Article 25 of the Patent Law.
According to the second paragraph of Article 2 of the Patent Law, the term "invention" in the Patent Law refers to a new technical scheme proposed for a product, method or its improvement. An application for a patent for invention involving a computer program is the object of patent protection only if it constitutes a technical scheme.
If the solution of an application for a patent for invention involving a computer program is to solve technical problems, running a computer program on a computer to control or deal with external or internal objects embodies the technical means of following the laws of nature, thus obtaining the technical effect in line with the laws of nature, then this solution belongs to the technical solution mentioned in the second paragraph of Article 2 of the Patent Law and belongs to the object of patent protection.
If the solution of an application for a patent for invention involving a computer program does not aim at solving technical problems, or if the computer program is run on a computer to control or handle external or internal objects, it does not reflect the technical means of using natural laws, or does not achieve the effect of being bound by natural laws, then the solution does not belong to the technical solution mentioned in the second paragraph of Article 2 of the Patent Law and does not belong to the object of patent protection.
For example, if the solution of an invention patent application involving a computer program executes a computer program to control the industrial process, measurement or testing process, and the industrial process control program is executed by a computer to complete a series of controls at various stages of the industrial process according to the laws of nature, so as to obtain the industrial process control effect conforming to the laws of nature, then this solution belongs to the technical scheme mentioned in the second paragraph of Article 2 of the Patent Law and belongs to the object of patent protection.
If the solution of an application for a patent for invention involving a computer program is to process external technical data, execute a technical data processing program by a computer, and complete a series of technical processing on the technical data according to the laws of nature, so as to obtain the technical data processing effect conforming to the laws of nature, then the solution belongs to the technical solution described in the second paragraph of Article 2 of the Patent Law and belongs to the object of patent protection.
If the solution of an application for a patent for invention involving a computer program is to improve the internal performance of a computer system, the computer will execute the program for improving the internal performance of the computer system and complete a series of settings or adjustments for various components of the computer system according to the laws of nature, so as to obtain the effect of improving the internal performance of the computer system in line with the laws of nature, then this scheme belongs to the technical scheme described in the second paragraph of Article 2 of the Patent Law and belongs to the object of patent protection.
The computer program itself mentioned in this chapter refers to the coded instruction sequence that can be executed by computers and other equipment with information processing capabilities, or the symbol instruction sequence or symbol sentence sequence that can be automatically converted into the coded instruction sequence. A computer program itself includes a source program and an object program.