03 March 2017
Revisions to Chinese Law on Software Patents
In Europe and the US there has been a lot of discussion in recent years about the law related to software patents and where the line should be drawn between a computer program which merely implements a known process on a computer and a computer program which provides a technical contribution to a technical field. China has now joined the discussion by making some changes to its own statute. These changes come into force on 1 April 2017.
The current position in China is quite clear in that Chinese patent law excluded from patentability computer programs as such but does not rule out the patentability of inventions which relate to computer programs.
Typically, claims to protect software related inventions in China are drafted as a process claim or a “means plus function” claim and they can be construed very narrowly in infringement proceedings.
The changes mean that software may be claimed as “a computer program product”, “a machine-readable medium” and “an apparatus comprising a processor configured to execute instructions on a computer-readable medium to perform the steps of…”
These categories of claim go much closer to the typical embodiment of a software based product and enable applicants to seek to define software in a way which is much broader and more likely to capture an infringer.
Individual cases require consideration on their respective facts but it is clear that Chinese patent law is seeking to modernise to open up to the idea that software can be an invention.
Given the specific format of claims that are admitted by the revised Chinese Guidelines it seems sensible, when drafting a patent application for an invention which will be prosecuted in China, to include claims which are specifically intended for Chinese prosecution.
UDL has extensive experience in prosecuting patent applications in China and in the drafting of patent applications relating to software. If you have any questions related to either then please do not hesitate to contact us.