Earlier this year, the state intellectual property office of the people's republic of china (SIPO) has presented new guidelines for patenting software. These new guidelines correspond more closely with the European guidelines.
Previously, patents could be obtained in China only for method claims and for claims using a formulation of “means plus function”. This has the disadvantage that a method claim in the area of software is typically performed by the end user – and as a patent holder one may often prefer to put pressure on competing suppliers rather than on common or potential customers. This also had the disadvantage that a claim using “means plus function” is often interpreted in a more limited manner than the patent holder would like in Chinese procedures. This made China much more severe for applying for a software patent than other big markets, like Europe, the United States, Japan and Korea.
New guidelines Software patents
With the new guidelines it has now become possible to claim a “computer program product”, a “machine-readable medium”, and an “apparatus comprising a processor configured to execute instructions stored on a computer-readable medium to perform the steps of …”. In Europe, such formulations have already been allowable for a longer time.
These formulations correspond more closely with the way that software is sold in real life. In this manner, the patent holder can obtain a more complete protection for his software. Therefore, by including such claims in patent applications, software can now be protected more effectively in China.
The new guidelines also contain an easing for applying for a patent on methods for doing business if these methods include sufficient technical elements, an easing for later filing of experimental data for chemical inventions, and an easing for amending claims based on claims of another category (for example to add an element to an apparatus claim that was not described explicitly, based on a step of a corresponding method claim).
Software patents and Arnold & Siedsma
The patent attorneys at Arnold & Siedsma take all of these aspects into account for you from the beginning. They formulate and defend claims that are potentially internationally directed, even in the first stages of drafting a patent application. In this manner, they keep your future options as broad as possible.
More information about software patents in China: