In China, the examination criteria for inventions related to computer programs have been very strict over many years. However, in the newly revised Chinese Patent Examination Guidelines, which took effect on April 1 2017, the restrictions on such inventions have been loosened to a large extent. The main changes are:
- Media-recorded computer programs can be protected by patents;
- Components in the apparatus claims related to computer programs may be defined with program flows;
- Components of an apparatus related to computer programs are characterized as "program modules" rather than "function modules".
|Computer program only recorded in media does not belong to the object of patent protection
||Computer program per se only recorded in meida does not belong to the object of patent protection
This modification defines that "computer program per se" is different from "the invention related to computer programs"; the former refers to a coded instruction sequence, symbolised instruction sequence or symbolised statement sequence, etc; the latter refers to the processing flows which are wholly or partly based on the computer programs and control or process external or internal objects of a computer. This modification essentially allows the expression of "medium plus computer program process" in claims.
For a solution wholly based on the flow of computer programs, the claims could be drafted as follows:
A computer readable storage medium in which the computer program (instruction) is stored, wherein, when the program (instruction) is executed by the processor, the following steps are performed ...
A computer readable storage medium on which the computer program (instruction) is stored, wherein the program (instruction) is executed by the processor to implement the steps of the method of claim X.
Components of apparatus claims related to computer programs
|(For inventions relating to computer programs) If it is drafted as an apparatus claim, the various component parts and the connecting relationship among them shall be defined, and detailed explanations shall also be given on the components by which the various functions of the computer program are performed, and on how these functions are performed.
||(For inventions relating to computer programs) If it is drafted as an apparatus claim, the various component parts and the connecting relationship among them shall be defined, the said components may include not only hardware, but also programs.
The above modifications clarified that computer programs can be regarded as parts of the apparatus claim. The defining function of program flow features, as well as the novelty and inventiveness of such features, has no relevance as to whether the features affect the structure of the hardware apparatus. That's to say, in the future, examiners shall not reject the novelty and inventiveness of the claims on the ground that the improvement of the present invention only lies in the software programs and the hardware structure is the same as the existing technology.
According to the original Guidelines, computer programs in the apparatus' claims must be formally drafted in special modules, which must appear in the following form:
A computer apparatus, comprising a memory and a processor, the said memory include:
module A, for performing step a;
module B, for performing step b; ……
In accordance with the revised Guidelines, the aforementioned form of special modules is unnecessary: the computer program flows can be presented directly in the apparatus claims in the form of operating steps. That is, the following forms of claims are allowed:
A computer apparatus including a memory, a processor, and a computer program that is stored on the memory and running in the processor, wherein the computer program performs the following steps:
b step; …….
"Function module" versus "program module"
|For the apparatus claim completely corresponding to the method claim, each component in the apparatus claim shall be regarded as a function module which is built to realise each step in the computer program flow or each step in the method claim. The apparatus claim defined by such a group of function modules shall be regarded as the function module architecture to realise the solution mainly through the computer program recorded in the description…
||For the apparatus claim completely corresponding to the method claim, each component in the apparatus claim shall be regarded as a program module which is built to realise each step in the computer program flow or each step in the method claim. The apparatus claim defined by such a group of program modules shall be regarded as the program module architecture to realise the solution mainly through the computer program recorded in the description…
The above modification defines the modules in the claims related to the computer program as "program module architecture". The improvement of such solutions lies in the computer program, and hardware is just the general-purpose apparatus for executing program flows. After modification, "program module" could be clearly distinguished from "function module" in non-computer program inventions (which could avoid rejections by the examiner for creations related to computer programs being applied by mistake to the provisions for function definition). For an apparatus claim, when the modules thereof are defined with the expression generally recognised as function definition, such as "can (for)...", if the apparatus claim is related to a computer program, the module in such definition should be understood as a program module rather than a function module.
By this modification, the requirements for inventions related to computer programs are obviously loosened in both form and substance. In the future, the applicant may, considering the characteristics of the technical solutions and their own needs, adopt one or more of the following four forms to draft the claims for an invention related to acomputer program:
- conventional method claim including actions and steps: for example, an image recognition method, wherein the method comprises step A and step B.
- An apparatus claim including computer program: for example, a computer apparatus, including a memory, a processor, and programs stored in the memory and running in the processor to implement step A and step B.
- An apparatus claim defined by program module architecture: for example, a computer system for ..., including an apparatus for performing operation A and an apparatus for performing operation B.
- An apparatus claim as "medium + computer program flows": for example, a computer readable medium in which programs are stored, wherein the program performs step A and step B.
||Quan Kang is a patent attorney with DEQI IP Law Corporation. She earned her B S degree in mechanical engineering and automatization and her M S degree in mechanism and automation engineering from the Beijing Institute of Technology. |
Kang has practised in the field of IP for 13 years. She focuses on drafting and prosecuting patent applications including inputting cases and domestic cases, patent reexaminations and invalidations in mechanics, industrial design and electronics. She also has rich experience in patent validity, patentability and infringement opinions. Kang is a member of the All-China Patent Agents Association.