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CNIPA Issued AI Related Patent Examination Guidelines

View: 370     Date: 2019-11-14 03:06

With the continuous development of Internet technology and information technology, the amount of invention patent applications relating to new technologies are increasing dramatically. Compared with patent applications in other fields, the artificial intelligence related patent application is characterized in that: in addition to technical features, it generally includes features describing rules and methods of intellectual activities such as algorithms or business methods.


On November 12, 2019, CNIPA issued the “Draft of Amended Patent Examination Guidelines, Part II, Chapter 9 (Draft for Comment)”, which elaborated the examination rules for such patent applications and interpreted the examination rules through typical cases.

The draft specifically adds Section 6 to the Chapter 9 of Part II. In conjunction with specific cases, the eligible subject matter, novelty and inventiveness, drafting of claims and specification of such applications are clearly defined. The main changes are as follows:


(1) Emphasizing that the technical features should not be separated from the features regarding algorithms, business rules and methods and etc.

The general principle of the examination under each clause has been clarified: “In the examination, technical features should not be separated from the features regarding algorithms, business rules and methods and etc., but all the contents of the claims should be treated as a whole for analyzing the involved technical means, the solved technical problems and the produced technical effects."


(2) Clarifying that claims including technical features should not be excluded in accordance with Article 25 of the Patent Law

If the claim includes technical features in addition to features regarding algorithmic or business rules and methods, the claim, as a whole, is not a rule and method of intellectual activity, and the possibility of granting a patent right for the claim should not be excluded based on the first paragraph of Article 25.1(2) of the Patent Law.


(3) Clarifying the examination criteria of Article 2 of the Patent Law

For the judgment of whether it is a technical solution, the examination criteria is further refined under the general “three-elements (technical problems, technical means, technical effects)” judgement method defined in general chapters of the Patent Examination Guideline. As long as the algorithm and the specific technical application field can solve a certain technical problem, it can be considered that the claim complies with Article 2 of the Patent Law.


(4) Considering the technical contribution to inventiveness from the features regarding algorithms or business rules and methods, which functionally support the technical features and have an interaction relationship with the technical features

In the inventiveness examination of an invention patent application including both the technical features and the features regarding algorithms or business rules and methods, the features regarding algorithms or business rules and methods, which functionally support the technical features and have an interaction relationship with the technical features, should be taken as a whole with the technical features. The draft makes further explanation about this.


(5) Ten exemplary cases, including the positive examples and the negative examples, are added for the examination of eligible subject matter and inventiveness

Example 1 is an abstract model establishment method that does not involve integration with specific application fields and does not contain technical features. It belongs to the rules and methods of intellectual activities specified in Article 25(1)(2) of the Patent Law. Example 2, Example 3 and Example 4 are eligible subject matters regarding artificial intelligence, business model, and blockchain. Example 5 and Example 6 are negative examples. Example 7 and Example 9 are cases possessing the inventiveness, when taking the features regarding algorithms or business rules and methods, which functionally support the technical features and have an interaction relationship with the technical features, as a whole with the technical features. Example 8 and Example 10 are cases lacking the inventiveness in view of contents disclosed by prior art references.


(6) Refining the requirements for drafting the specification and claims

Further refine the requirements for drafting the specification. For example, the description about how to combine the algorithm with the specific technical field, and the description about the user experience should be included in the specification. With respect to drafting the claims, it is emphasized that the claims should include technical features, and features regarding algorithms or business rules and methods, which functionally support the technical features and have an interaction relationship with the technical features.


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