Patent validity Patent law of the People's Republic of China

1 patent validity

1.1 novelty
1.2 inventiveness
1.3 industrial applicability , excluded matter

patent validity

any person can contest patent s validity. there post-grant opposition procedure available through sipo, or otherwise actions can initiated @ patent review board (prb). appeal lies beijing ip court now. before 2014, beijing intermediate people s court.

patent litigation proceedings bifurcated, meaning issues of infringement tried separately (and in separate venue) invalidity. infringement proceedings stayed (on application defendant) pending outcome of invalidation hearing.

novelty

with third amendment patent law, china applies standard of absolute novelty. is, invention not new (and therefore unpatentable) if has been published or publicly disclosed anywhere in world @ priority date.

inventiveness

to considered inventive, invention must have, in eyes of notional addressee, prominent substantive features mark notable progress in state of art; alternatively, addressee cannot obtain existing technology necessary technical features of invention.

sipo s examination guidelines, followed courts also, recommend problem-solution approach assessing obviousness:

1. identify closest prior art; 2. identify technical problem solved; 3. identify differences between prior art , invention; 4. differences obvious skilled addressee trying solve technical problem?

the notional addressee ordinary technician skilled in field of invention.

industrial applicability , excluded matter

an invention possesses industrial applicability if can made or used in such way generate effective results. excluded subject matter in line trips, scientific discoveries, methods mental activities, methods diagnosis , treatment of disease, animal , plant varieties, , catch-all other undesirable inventions.

software explicitly included method mental activity. however, sipo s examination guidelines follow epo practice , allow software inventions produce technical effect , not merely software-as-such.

in april of 2017, sipo revised patent examination guidelines allow patenting of business methods provided claimed method had technical features.