Patent Law

The above-titled article in the Vol.1 No.5 May/June 2009 print issue of Landslide (a publication of the ABA Section of Intellectual Property Law) by Eugene F. Derényi, Vivien Tzau, Nicholas Zweck, Huw Evans, Ramesh C. Dhawan, Anuj Kulshreshtha, Lena Shen, Kazuhiro Yamaguchi, Indra Bhattacharya, and Wayne McMaster (practitioners in Australia, Canada, China, India, Japan and the U.K.) includes comments "on the level of protection offered in those countries for equivalents to business method patents granted in the United States."

See the following excerpt from the China section:

The trend of the Chinese Patent Office (SIPO) is to allow business method patents. Nevertheless, the requirements of patenting business methods are strict, and SIPO is still very careful with the examination and approval of business method patent applications. Until now, only a very insignificant number of applications for business method patents have been approved.

In late 2002 and early 2003, the intellectual property sector in China, especially in the financial fields, gave much attention to the question of patentability of business methods. The granting of two business method patents filed by CitiBank was the trigger for such discussions...

Article 25 of the Chinese Patent Law prescribes that patent rights shall not be granted to rules and methods for mental activities. Generally speaking, business methods are categorized as (1) common business modes and (2) computer software-related business methods. The first category of subject matter is regarded as rules of pure mental activities and is not granted patent protection. The second category may be patented if certain requirements are met.

As it stands, the requirements for business method patents in China are as follows.

(1) A business method patent application must be an invention that implements a business method through computer or network technologies, rather than software technology per se expressing and implementing such a method.

(2) The claims of a business method patent application must solve technical problems, adopt technical solutions, and acquire technical effect.

(3) The business method must be novel and inventive.

(4) The invention should be able to capable of repeated application in industry and business activities.

There is yet to be a case dealing with infringement of a business method patent in China.