In response to the growing demand from innovative entities for greater clarity in the examination of patents in emerging fields – such as artificial intelligence, blockchain, and business methods – the China National Intellectual Property Administration (CNIPA) issued the Amendment to Chapter 9, Part II of the Guidelines for Patent Examination (Draft for Public Comment). The amendment comes into effect on February 1, 2020.

Outlined below are the key provisions of the amendment concerning the examination of claims that include algorithmic features or business rule and method features.

General Principle

When examining such claims, examiners must not isolate algorithmic or business rule/method features from the technical features. Instead, the claim must be assessed as a whole, taking into account the technical means employed, the technical problem addressed, and the technical effect achieved. The examination should proceed sequentially under Article 25, Article 2, and then Paragraphs 2 and 3 of Article 22 of the Patent Law.

Examination under Article 25: Rules and Methods for Mental Activities

If a claim includes both algorithmic or business rule/method features and technical features, it shall not be excluded from patentability as a rule or method for mental activities under Article 25.

Examination under Article 2: Definition of an Invention

All features of the claim must be considered collectively to determine whether the claim constitutes a “technical solution” – i.e., whether it involves a technical problem, employs technical means, and produces a technical effect. In particular, a claim satisfies the requirements of Article 2 if the algorithm is applied in a specific technical context and is capable of solving a technical problem.

Examination under Paragraph 2 of Article 22: Novelty

For the purpose of assessing novelty, all features of the claim – including technical features as well as algorithmic or business rule/method features – must be considered to determine whether the claim includes any distinguishing features over the prior art.

Examination under Paragraph 3 of Article 22: Inventiveness

In evaluating inventiveness, algorithmic or business rule/method features must be considered in conjunction with the technical features, provided that these features are functionally interrelated and mutually supportive.

Flowchart of Patentability Examination of Claims Containing Algorithm or Business Rule and Method Features