Revision and interpretation of Chapter 9, Part II of patent examination guide in 2020
The newly revised Patent Examination Guide (hereinafter referred to as the guide) is scheduled to come into force on February 1, 2020. In order to better guide the practice of patent application and examination, the main contents of this amendment are introduced and interpreted.
1、 Modify background
In order to fully implement the decision-making and deployment of the CPC Central Committee and the State Council on strengthening the protection of intellectual property rights, and respond to the need of innovation subjects to further clarify the rules for patent application examination in new business forms and new fields, such as artificial intelligence, the State Intellectual Property Office carried out a special study on the protection system of intellectual property rights in new business forms and new fields, on the basis of combing the problems and summarizing the practical experience of examination, started in time Revised the guide. This revision refines the examination rules of patent applications in related fields, clarifies many difficult problems in the examination practice, and strives to achieve the goal of further improving the quality and efficiency of patent examination and supporting innovation driven development.
2、 Modification process
In August 2019, the State Intellectual Property Office officially launched the perfection modification of Chapter 9 of Part II of the guide, formed the revised draft of the patent examination guide (Draft for comments), and publicly solicited opinions from the public from November 12 to December 11, 2019. After receiving the comments, after sorting out, summarizing, analyzing and demonstrating, reasonable comments were adopted, and the draft was further modified and improved accordingly, forming the revised draft of patent examination guide (Draft for examination). In December 2019, the decision of the State Intellectual Property Office on Amending the guidelines for patent examination was deliberated and adopted by the executive meeting of the office, and issued by the Announcement No. 343 of the State Intellectual Property Office on December 31. The newly revised guide will come into force on February 1, 2020.
3、 Modification
In Chapter 9 of Part II of the guide, a new section 6 is added, "relevant provisions on the examination of patent applications for invention including algorithmic features or business rules and method features"; it consists of sections 6.1, 6.2 and 6.3, which are respectively "examination basis", "examination example" and "writing of specification and claims". In combination with specific examples, this modification clearly defines the authorized object, novelty and inventiveness of such applications, and the writing of the description and claims.
（1） Review basis (Section 6.1)
The general principles of the review are set out in Section 6.1 "review benchmarks".
1. Emphasizing the principle of overall consideration of claims
Patent applications involving artificial intelligence, Internet plus, big data and block chains often contain rules and methods of intelligence activities such as algorithms, business rules and methods. This modification makes it clear that in the review, technical features and algorithm features or business rules and method features should not be simply separated, but all contents recorded in the claims should be considered as a whole. If these features are directly ignored or separated from the technical features, the substantial contribution of the invention cannot be objectively evaluated, which is not conducive to the protection of the real invention.
2. The examination standard for determining whether the claim belongs to the rules and methods of intellectual activities (section 6.1.1)
The modification makes it clear that if the claim involves abstract algorithm or simple business rules and methods, and does not contain any technical features, the claim belongs to the rules and methods of intellectual activities, and shall not be granted a patent right. However, as long as the claim contains technical features, the claim as a whole is not a rule or method of intellectual activity, and the possibility of obtaining the patent right shall not be excluded in accordance with the first paragraph (2) of Article 25 of the patent law.
3. Clarify whether the claim belongs to the review standard of the technical proposal (section 6.1.2)
The revision clarifies the review order of the relevant legal provisions of the object. In view of the subject matter requiring protection, it is necessary to first examine whether it does not belong to the rules and methods of intellectual activities, and then examine whether it belongs to the technical scheme as stipulated in article 2.2 of the patent law. When judging whether a claim is a technical solution, the technical means involved, the technical problems solved and the technical effects obtained therein shall be analyzed, which is consistent with the judgment principle that the technical solution specified in Chapter 1, Section 2, Part II of the guide is a set of technical means utilizing natural laws to solve the technical problems to be solved, etc.
4. Further clarify the principle of relevance consideration in creative judgment (section 6.1.3)
As mentioned before, the revised guide defines the principle of overall consideration in the review, which is also applicable to the judgment of novelty and creativity. In addition, in the process of creative judgment, the guide further clarifies the principle of relevance consideration, that is, the algorithm features or business rules and method features that support each other and interact with each other in the function of technical features shall be considered as a whole with the technical features, and the contribution of algorithm features or business rules and method features to the technical scheme shall be considered. At the same time, the guide explains and exemplifies the concept of "mutual support and interaction in function". Here, "mutual support and interaction in function" is defined in section 3.2.1.1 of Chapter 4 of Part II of announcement 328 of the patent examination guide issued by the State Intellectual Property Office in 2019 as "for the technical features with mutual support and interaction in function, the technical features shall be considered as a whole And the relationship between them is consistent with the relevant expression in "technical effect achieved in the invention requiring protection".
（2） Review example (Section 6.2)
Section 6.2 adds 10 review examples of authorization object and creativity from both positive and negative aspects. Examples 1-6 are review examples to determine whether they are authorized objects. Example 1 is an abstract mathematical model building method, which belongs to the rules and methods of intellectual activities specified in Item (2), paragraph 1, Article 25 of the patent law. Examples 2, 3 and 4 are authorized objects in the fields of artificial intelligence, business model and blockchain, while examples 5 and 6 are reverse examples. Examples 7-10 are examination examples for judging whether the protection scheme is creative when it belongs to the authorized object. Examples 7 and 9 are examples of creativity, and examples 8 and 10 are examples of non creativity. The review examples in Section 6.2 are a further interpretation of the review principles in Section 6.1. In understanding these examples, we should focus on the review concepts and legal principles embodied, rather than simply mechanically applying them.
Some of the examples are further illustrated here.
Example 7 relates to a fall detection method of humanoid robot based on multi-sensor information. The whole idea of creative judgment is as follows: after retrieval, the reference document 1 is found, the gait planning and feedback control based on sensor information of humanoid robot are disclosed, and the stability of humanoid robot is judged according to relevant fusion information, including the stability evaluation of humanoid robot based on multiple sensor information. After comparison, the reference document 1 is determined as the closest prior art. The difference between the solution of the application and the reference document 1 is the implementation algorithm of fuzzy decision. On this basis, we can further judge whether the algorithm features and technical features support each other and interact with each other in function, that is, whether they are closely combined and jointly constitute a technical means to solve a technical problem, and can obtain corresponding technical effects, that is, whether they have made technical contributions. After obtaining a positive conclusion, the algorithm features shall be taken into consideration when determining the technical problems actually solved in the application and judging whether there is any combination enlightenment in the prior art. Because the algorithm for realizing the fuzzy decision and the judgment applied to the stable state of the robot are not disclosed by other reference documents, nor are they common sense, the creativity of the fuzzy decision is finally recognized.
Example 10 deals with a visual method of dynamic viewpoint evolution. The complete idea of creative judgment is as follows: after retrieval, it is found that reference document 1 discloses a visual analysis method based on emotion, in which time is expressed as a horizontal axis, the width of each color band at different times represents a measure of emotion at that time, and different color bands represent different emotions. After comparison, the reference document 1 is determined to be the closest prior art. The difference between the solution of the application and the reference document 1 lies in the specific classification rules of the set emotion. Even though the rules of emotion classification are different, the technical means of coloring the corresponding data can be the same without changing. Therefore, the above rules of emotion classification and the specific visualization means do not support and interact with each other in function, and they do not contribute to the technical scheme. Therefore, when determining the technical problem actually solved in the application, it can be determined that the claim has no technical problem actually solved compared with the reference document 1, and then it can be concluded that the claim does not possess inventiveness directly. It should be emphasized here that the claims of the present application do not actually solve any technical problem compared with the reference document 1, rather than that the claims themselves do not solve any technical problem. The so-called "visualization" problem has been solved in the reference document 1. The contribution of the present application to the prior art is to propose a new emotion classification rule. In addition, it should be noted that for the claim, the claim solves the visualization problem of specific emotional rules, adopts the technical means of coloring the corresponding data, utilizes the natural attribute of human visual senses, follows the natural law, and obtains the technical effect of displaying the evolution of the dynamic view. Therefore, it is in conformity with the provision of paragraph 2, Article 2 of the patent law.
It should be noted that for patent applications involving algorithms, if the claim is the same as the application scenario of the closest prior art, the difference only lies in the adjustment of the algorithm, for example, it is also used for the identification of obstacles in driverless driving, the algorithm of the claim reselects or adjusts the parameters and formulas, and the technical problem actually solved is to further improve the detection of obstacles If there is no technical enlightenment to solve the problem in the prior art as a whole, then the claim is not obvious; if the difference between the claim and the closest prior art is only that the application scenario is different, when judging the inventiveness, it is usually necessary to consider the distance and difficulty of the conversion, whether it is necessary to overcome the technical difficulties, whether there is technical enlightenment, and whether the conversion is necessary Technical effect and other factors.
（3） Preparation of specification and claims (section 6.3)
1. Make clear the basic requirements of the instruction (section 6.3.1)
For invention patent applications containing algorithm features or business rules and method features, it should be noted that the particularity of such applications lies in algorithm features or business rules and method features, so these features should be stated in the specification. Secondly, it is necessary to indicate how the technical features and these features "support each other in function and interact with each other" to solve the technical problems together. For example, for the patent application of artificial intelligence invention, due to the particularity of its internal operation, when the invention contains algorithm features, the abstract algorithm should be combined with the specific technical field, and the definition of at least one input parameter and its related output result should be associated with the specific data in the technical field. The "combination with the specific technical field" here is not simple The combination process shall be described to enable those skilled in the art to confirm. Third, the specification shall state the beneficial effects, such as the improvement of quality, accuracy or efficiency, and the improvement of the internal performance of the system, and shall give detailed explanation or proof when necessary. Fourth, if the invention objectively improves the user experience from the user's point of view, that is to say, the improvement of the user experience is objective and not different from each other's subjective preferences, it can also be explained in the specification. At the same time, it should be stated how the improvement of the user experience is composed of the technical features of the invention, and the algorithm that supports and interacts with each other in its functions A feature or business rule and method feature brought about or produced together.
2. Specify the basic requirements for the writing of the claims (section 6.3.2)
For an invention patent application containing algorithmic features or business rules and method features, the claim shall record the technical features and algorithmic features or business rules and method features mutually supporting and interacting with the technical features.
In general, this amendment is a detailed provision on the examination rules of patent applications in new business forms and new fields, such as artificial intelligence, under the framework of the current patent law and its implementation rules. It aims to respond to the needs of innovation subjects in a timely manner and solve the problems in the examination practice. On the one hand, it raises the beneficial practices explored in the review practice to the guide, unifies the review standards, and provides clear guidance on how to better write such applications, so as to improve the quality of applications; on the other hand, it clearly defines the rules and methods for intellectual activities such as technical characteristics, algorithms or business rules and methods that should be considered in combination with the characteristics of such applications Features: correctly grasp the technological contribution of the invention, so as to continuously improve the quality and efficiency of the review, and promote the further development and growth of new technologies and new business models.
