1. Introduction
Examination of invention applications relating to computer programs has certain characteristics. This Chapter is to present the specific provisions for the examination characteristics of invention applications relating to computer programs based on the provisions of the Patent Law and its Implementing Regulations.

Invention applications relating to computer programs also share common general characteristics with invention applications in other fields. The general proceedings of examination not mentioned in this Chapter shall comply with the provisions set forth in other chapters of these Guidelines when invention applications relating to computer programs are examined.

Computer programs per se said in this Chapter mean a coded instruction sequence which can be executed by a device capable of information processing, e.g., a computer, so that certain results can be obtained, or a symbolized instruction sequence, or a symbolized statement sequence, which can be transformed automatically into a coded instruction sequence. Computer programs per se include source programs and object programs.

The invention relating to computer programs said in this Chapter refers to solutions for solving the problems of the invention which are wholly or partly based on the process of computer programs and control or process external or internal objects of a computer by the computer executing the programs according to the above mentioned process. The said control or process of external objects includes control of certain external operating process or external operating device, and process or exchange of external data, etc.; the said control or process of internal objects includes improvement of internal performance of computer systems, management of internal resources of computer systems, and improvement of data transmission, etc. Solutions relating to computer programs do not necessarily include changes to computer hardware.

2. Examination Criteria of Invention Applications Relating to Computer Programs

Examination shall focus on solutions for which protection is sought for, i.e., solutions defined by each claim.

In accordance with Article 25.1(2), no patent rights shall be granted for the rules and methods for mental activities. Invention applications relating to computer programs fall under the situations described in Chapter 1, Section 4.2 of this part shall be examined under principles thereof.

(1) If a claim merely relates to an algorithm, or mathematical computing rules, or computer programs per se, or computer programs recorded in mediums (such as tapes, discs, optical discs, magnetic optical discs, ROM, PROM, VCD, DVD, or other computer-readable mediums), or rules or methods for games, etc., it falls into the scope of the rules and methods for mental activities and does not constitute the subject matter for which patent protection may be sought.

If all the contents of a claim, except its title of the subject matter, merely relate to an algorithm, or mathematical computing rules, or programs per se, or rules or methods for games, etc., the claim essentially merely relates to rules and methods for mental activities, and does not constitute the subject matter of patent protection.

For example, computer-readable storage medium or a product of computer program that is merely defined by recorded program, or devices for computer games, etc., which are merely defined by game rules and does not include any technical features, e.g., those do not include any physical entity, does not constitute the subject matter of patent protection because it essentially merely relates to rules and methods for mental activities. However, the claimed medium in an patent application relating to physical characteristics improvement thereof, for example, layer composition, magic channel spacing, materials, etc., does not fall into the cases mentioned above.

(2) Besides cases said in (1), if all the contents of a claim include not only rules and methods for mental activities but also technical features, for example, the contents defining the above mentioned devices for computer games include rules for games and technical features as well, then the claim as a whole is not rules and methods for mental activities, and shall not be excluded from patentability in accordance with Article 25.

In accordance with Article 2.2, “invention” in the Patent Law means any new technical solution relating to a product, a process or improvement thereof. An invention application relating to computer programs is the subject matter of patent protection only if it constitutes a technical solution.

If the solution of an invention application relating to computer programs involves the execution of computer programs in order to solve technical problems, and reflects technical means in conformity with the laws of nature by computers running programs to control and process external or internal objects, and thus technical effects in conformity with the laws of nature are obtained, the solution is a technical solution as provided for in Article 2.2 and is the subject matter of patent protection.

If the solution of an invention application relating to computer programs involves the execution of computer programs not in order to solve technical problems, or does not reflect technical means in conformity with the laws of nature by computers running programs to control and process external or internal objects, or the effect obtained is not restrained by the laws of nature, the solution is not a technical solution as provided for in Article 2.2, and is not the subject matter of patent protection.

For example, if the solution of an invention application relating to computer programs involves the execution of computer programs in order to perform control of an industrial process, a measurement or test process, completes a series of control during various stages of industrial process in accordance with the laws of nature through execution of a kind of industrial process control program by a computer, and thus industrial process control effects in conformity with the laws of nature are obtained, the solution is a solution as provided for in Article 2.2 and is the subject matter of patent protection.

If the solution of an invention application relating to computer programs involves execution of computer programs in order to process a kind of external technical data, completes a series of technical process on the technical data in accordance with the laws of nature through execution of a kind of technical data process program by a computer, and thus technical data process effects in conformity with the laws of nature are obtained, the solution is a solution as provided for in Article 2.2 and is the subject matter of patent protection.

If the solution of an invention application relating to computer programs involves execution of computer programs in order to improve the internal performance of a computer system, completes a series of setting or configuration to parts of a computer system in accordance with the laws of nature through execution of a kind of system internal performance improvement program by a computer, and thus internal performance improvement effects of the computer system in conformity with the laws of nature are obtained, the solution is a solution as provided for in Article 2.2 and is the subject matter of patent protection.

2013-07-17