China: Revisions To Patent Examination Guidelines In China

SIPO of China issued Decision of Revisions to "Examination Guidelines" on February 28, 2017. The Revisions will be brought into effect on April 1, 2017. CSPTAL provides a brief introduction of the Revisions as follows.

Part II Chapter 2 - Subject Matter Excluded from Patent Protection

4.2 Rules and Methods for Mental Activities

  • add "if a claim involving commercial/business pattern/model contains not only matter of commercial/business rule or method but also technical features, the claim shall not be excluded from patentability under Article 25."

Part II Chapter 9 - Invention Applications Relating to Computer Program

1) add "per se" after "computer program" and "program" in Section 2.

2) delete Example 9 in Section 3.3

3) 5.2 Drafting of Claims

  • modify "the claims of an invention application relating to computer programs may be drafted as process claim or product claim, i.e., the apparatus for executing the process" to "the claims of an invention application relating to computer programs may be drafted as process claim or product claim, e.g., the apparatus for executing the process"
  • delete "a detailed account shall also be given on the component parts by which the various functions of the computer program are performed, and on how these functions are performed"
  • add "the component parts may not only contain hardware but also program"
  • modify "functional module" to "program module"

Part II Chapter 10 – Regarding Supplemental Data

3.4 Embodiments

  • delete "(2) Whether or not the description is sufficiently disclosed is judged on the basis of the disclosure contained in the initial description and claims, any embodiment and experimental data submitted after the date of filing shall not be taken into consideration."
  • add "3.5 Experimental data submitted after the date of filing

Whether or not the description is sufficiently disclosed is judged on the basis of the disclosure contained in the initial description and claims.

The Examiner shall examine experimental data submitted after the date of filing. Technical effects supported or proven by the experimental data shall be effects that can be obtained /derived from the disclosure of the application by one skilled in the art."

Part IV Chapter 3 - Requests for Invalidation

1) 4.6.2 Manner of Amendment

  • modify "the specific manners of amendment are generally limited to deletion of a claim, combination of claims, and deletion of a technical solution " to "the specific manners of amendment are generally limited to deletion of a claim, deletion of a technical solution , further limitation in a claim, and correction of an obvious error."
  • delete provisions specifically regarding combination of claims.
  • add "further limitation in a claim means to incorporate one or more technical features from other claims(s) into a claim to narrow the scope."

2) 4.6.3 Restrictions to Manners of Amendment

  • modify "the patentee may amend the claims by the way of combination" to "the patentee may amend the claims in a manner except deletion."

3) 4.2 Addition of Causes for Invalidation

  • modify "for claims amended by way of combination, additional of causes for invalidation is made within the time limit" to "for claims amended in a manner except deletion, additional of grounds for invalidation is made with respect to the amendment within the time limit."

4) 4.3.1 Presenting Evidence by the Petitioner

  • delete "concerning claims amended by way of combination." Part V Chapter 4 - Patent Application Files

5.2 Contents allowed for Consultation and Photocopying

  • delete "those before the date of publication" from "for the file of a patent application for invention which has been published and whose grant of patent right has not been announced, the contents in the file which may be consulted and copied relate to those before the date of publication" in Item (2).
  • add "notifications, search reports and decisions issued to the applicant during substantial examination " at the end of Item (2).
  • add "priority files" and "search reports" in Item (3) to be contents allowed for consultation and photocopying.
  • delete "(5) except for the above-mentioned contents, consultation or photocopying of other documents shall not be allowed." Part V Chapter 7 - Time Limit, Restoration of Right and Suspension of Procedure

1) 7.4.2 Time limit of suspension due to execution assistance of property Preservation

  • modify "the suspension shall cease six months after the date of receiving the civil order" to "the suspension shall cease in accordance with a time limit for property preservation provisioned in the civil order and a notification on assistance in Execution."
  • modify "the suspension may be extended six months" to "the suspension may be extended," and delete the sentence following "the suspension may be extended six months."

2) 7.4.3 Time limit of suspension concerning invalidation procedure

  • delete "or asked by the People's Court to assist in execution of property preservation."

3) 7.5.2 Cessation of Suspension Procedures Due to Execution Assistance of Property Preservation Asked by the People's Court

  • modify "the duration of the preservation is 6 months" to "the duration of the preservation is a time limit for property preservation provisioned in the civil order and a notification on assistance in Execution."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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