Guidelines for Patent Examination

(Order No. 78 of the CNIPA)

Guidelines for Patent Examination

(Amended in accordance with Order No. 84 of the CNIPA)

Part I, Chapter 1

4.1.2 Inventor

As prescribed in Rule 14, the inventor refers to the person who has made creative contributions to the substantive features of an invention-creation.The examiner does not examine whether or not the inventor whose name is filled in the request meets the requirements of the above provision in the examination procedures at the Patent Office.

The inventor shall be an individual, and the name of an entity, organization, or artificial intelligence shall not be filled in the request. For example, it shall not be filled in as "xx project group" or "Artificial Intelligence xx", etc...

Part I, Chapter 1

4.1.2 Inventor

As prescribed in Rule 14, the inventor refers to the person who has made creative contributions to the substantive features of an invention-creation. It is not allowed to fill in a false inventor. The examiner generally does not examine whether or not the inventor whose name is filled in the request meets the requirements of the above provision in the patent examination procedures, unless there is evidence indicating that the inventor whose name is filled in the request does not meet the above provision.

The inventor shall be an individual (i.e., a natural person). The identity information of all inventors shall be filled in the request, and the information shall be accurate. The name of an entity, organization, or artificial intelligence shall not be filled in the request. For example, it shall not be filled in as "xx project group" or "Artificial Intelligence xx", etc.

Part II, Chapter 1

4.4 Animal and Plant Varieties

Animals and plants are living things. According to Article 25.1(4), no patent rights shall be granted for animal and plant varieties.  The animal referred to in the Patent Law does not include humans, and it refers to the life form that cannot synthesize carbohydrates and proteins by itself but maintains life only by absorbing natural carbohydrates and proteins.  The plant mentioned in the Patent Law refers to the life form that maintains its life by synthesizing carbohydrates and proteins from inorganic compounds, such as water, carbon dioxide, and inorganic salt, through photosynthesis, and is usually immovable. Animal and plant varieties can be protected under other laws and regulations besides the Patent Law. For example, new plant varieties can be granted protection under the Regulations on the Protection of New Varieties of Plants.

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Part II, Chapter 1

4.4 Animal and Plant Varieties

Animals and plants are living things. According to Article 25.1(4), no patent rights shall be granted for animal and plant varieties.  The animal referred to in the Patent Law does not include humans, and it refers to the life form that cannot synthesize carbohydrates and proteins by itself but maintains its life only by absorbing natural carbohydrates and proteins. The plant variety mentioned in the Patent Law refers to a plant population that is artificially bred or discovered and improved. It has consistent morphological and biological characteristics and relatively stable genetic traits.  The life form that maintains its life by synthesizing carbohydrates and proteins from inorganic compounds, such as water, carbon dioxide, and inorganic salt, through photosynthesis, and is usually immovable. Animal and plant varieties can be protected under other laws and regulations in addition to the Patent Law. For example, new plant varieties can be granted protection under the Regulations on the Protection of New Varieties of Plants.

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Part II Chapter 3

6.2.2 Handling of One Application and One Patent

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However, where an applicant files on the same day (means the date of filing) applications for both patent for utility model and patent for invention relating to the identical invention-creation, if the patent for utility model has been granted and does not terminate, and the applicant has stated the fact respectively upon filing the applications, double patenting may be avoided by amending the invention application, or alternately by abandoning the patent for utility model. Therefore, during the examination of the invention application mentioned above, if the invention application has met all the other conditions for patentability, the applicant shall be notified to make a choice or make amendments. Where the applicant chooses to abandon the patent for utility model which has been granted, he shall submit a written declaration to abandon the patent for utility model at the time of making response to the Office Action. In this case, the examiner shall issue Notification to Grant Patent Right regarding the invention application which has met all the conditions for patentability but has not been granted yet, and transfer the written declaration of abandoning the patent for utility model mentioned above to the relevant examination departments for registration and announcement by the Patent Office. In the announcement, it shall be indicated that the patent right for utility model mentioned above ceases from the date of the announcement of grant of the patent for invention.

Part II Chapter 3

6.2.2 Handling of One Application and One Patent

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However, Where an applicant files on the same day (means the date of filing) applications for both patent for utility model and patent for invention relating to the identical invention-creation, in accordance with the provision of Rule 47, the applicant shall state respectively upon filing the application that another patent application for the identical invention-creation has been filed; where no such statement is made, the issue shall be handled in accordance with the provision of Article 9.1 that for any identical invention-creation, only one patent right shall be granted; where such a statement is made, and it is found upon examination that there is no grounds for rejection of the invention application, the applicant shall be notified to declare the abandonment of the patent for utility model within the specified time limit. Where the applicant declares to abandon the patent for utility model, a decision of grant of the patent for invention shall be made, and when an announcement of grant of the patent for invention is made, the declaration that the applicant has abandoned the patent for utility model shall also be announced. Where the applicant refuses to abandon the patent for utility model, the invention application shall be rejected. Where the applicant fails to respond within the time limit, it shall be deemed that the invention application has been withdrawn. if the patent for utility model has been granted and does not terminate, and the applicant has stated the fact respectively upon filing the applications, double patenting may be avoided by amending the invention application, or alternately by abandoning the patent for utility model. Therefore, during the examination of the invention application mentioned above, if the invention application has met all the other conditions for patentability, the applicant shall be notified to make a choice or make amendments.

Where the applicant chooses to abandons the patent for utility model which has been granted, he shall submit a written declaration to abandon the patent for utility model at the time of making a response to the Office Action. In this case, the examiner shall issue a Notification to Grant Patent Right regarding the invention application, which has met all the conditions for patentability but has not been granted yet, and transfer the written declaration of abandoning the patent for utility model mentioned above to the relevant examination departments for registration and announcement by the Patent Office. In the announcement, it shall be indicated that the patent right for utility model mentioned above ceases from the date of the announcement of grant of the patent for invention.

Part II Chapter 4

6.4 Examination on the Claimed Invention

The determination of whether an invention involves an inventive step shall be directed at the claimed invention. Therefore, the evaluation of inventive step shall concern the technical solutions as defined in the claims. The technical features by which the invention makes contribution over the prior art, such as the technical features bringing about unexpected technical effects for the invention, or the technical features reflecting how the invention overcomes a technical prejudice, shall be included in the claims; otherwise, they shall not be taken into account in evaluating the inventive step of the invention, even if they have been set forth in the description. Moreover, the evaluation of inventive step shall be directed to the whole of each technical solution defined in the claims, that is, it is the technical solution as a whole, rather than the individual technical features, that shall be evaluated as to whether involving an inventive step.

Part II Chapter 4

6.4 Examination on the Claimed Invention

The determination of whether an invention involves an inventive step shall be directed at the claimed invention. Therefore, the evaluation of inventive step shall concern the technical solutions as defined in the claims. The assessment of inventive step shall be directed to the whole of each technical solution defined in the claims, that is, it is the technical solution as a whole, rather than the individual technical features, that shall be evaluated as to whether it involves an inventive step.

The technical features by which the invention makes contribution over the prior art, such as the technical features bringing about unexpected technical effects for the invention, or the technical features reflecting how the invention overcomes a technical prejudice, shall be included in the claims; otherwise, they shall not be taken into account in evaluating the inventive step of the invention, even if they have been set forth in the description. Moreover, the evaluation of inventive step shall be directed to the whole of each technical solution defined in the claims, that is, it is the technical solution as a whole, rather than the individual technical features, that shall be evaluated as to whether involving an inventive step. The features that do not contribute to solving the technical problem generally do not affect the inventive step of the technical solution, even if they are included in the claims.

Part II Chapter 9

6.1.1 Examination According to Article 25.1(2)

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Part II Chapter 9

6.1.1 Examination According to Article 5.1

For an invention patent application that contains features relating to algorithms or commercial rules and methods, if the data collection, label management, rule setting, or decision-making,etc.therein contains content that is contrary to the laws or social morality or is detrimental to public interest, no patent right shall be granted according to the provision of Article 5.1 of the Patent Law.

Part II Chapter 9

6.2 Examination Examples

Below are examination examples for invention patent applications containing features relating to algorithms or commercial rules and methods, based on the above examination benchmarks.

(1) Invention patent applications containing features relating to algorithms, or commercial rules and methods which fall within the scope of Article 25.1(2) of the Patent Law are not patentable subject matters.

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Part II Chapter 9

6.2 Examination Examples

Below are examination examples for invention patent applications containing features relating to algorithms or commercial rules and methods, based on the above examination benchmarks.

(1)If an invention patent application containing features relating to algorithms, or commercial rules and methods, is contrary to the laws or social morality, or is detrimental to public interest, no patent right shall be granted.

(1)(2)Invention patent applications containing features relating to algorithms, or commercial rules and methods which fall within the scope of Article 25.1(2) of the Patent Law are not patentable subject matters.

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6.3 Drafting of Description and Claims

6.3.1 Drafting of Description

The description of an invention patent application that contains features relating to algorithms, or commercial rules and methods, shall clearly and completely describe the solution adopted by the invention to solve its technical problem. The solution shall be based on technical features and may further include algorithm features, commercial rules, and method features that are functionally mutually supportive and interactive with the technical features. 

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6.3.1 Drafting of Description

The description of an invention patent application that contains features relating to algorithms, or commercial rules and methods, shall clearly and completely describe the solution adopted by the invention to solve its technical problem. The solution shall be based on technical features and may further include algorithm features, commercial rules, and method features that are functionally mutually supportive and interactive with the technical features. If the construction or training of an artificial intelligence model is involved, it is generally necessary to clearly record in the description the modules, hierarchical or connectivity relationships needed for the model, the specific steps, parameters essential for the training, etc.; if the application of an AI model or algorithm in a particular field or scenario is involved, it is generally necessary to clearly record in the description how the model or algorithm is combined with the particular field or scenario, and how the input and output data of the algorithm or model are set, to indicate their inherent association, enabling a person skilled in the relevant technical field to implement the solution of the invention according to the contents of the description.

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Part II Chapter 9

Part II Chapter 9

7. Provisions Relating to Examination of Invention  Patent Applications including Bitstream

In the fields of streaming media, communication systems, and computer systems, various types of data are generally generated, stored, and transmitted as bitstreams. This section aims to make specific provisions on the examination of subject matter as patentable for invention patent applications, including bitstream and the drafting of the description and claims in accordance with the provisions of the Patent Law and its Implementing Regulations.

7.1 Examination of Subject Matter as Patentable

7.1.1  Examination According to Article 25.1(2)

If the subject matter of a claim relates solely to a bitstream itself, the claim falls under the rules and methods for intellectual activities as provided for in Article 25.1(2) and is not a subject matter eligible for patent protection. For example, "a bitstream, characterized in comprising syntax element A,  syntax element B, ..."

If a claim, except for the title of its subject matter, relates solely to a bitstream itself in all the contents it defines, then the claim belongs to rules and methods for intellectual activities as provided for in Article 25.1(2)  and is not a subject matter eligible for patent protection. For example, "a method for generating a bitstream, characterized in that the bitstream comprises  syntax element A,  syntax element B, ..."

7.1.2  Examination According to Article 2.2

In the technical field of digital video encoding and decoding, a bitstream is usually generated from video data by a video encoding method, and video data is generated from the bitstream by a video decoding method. If a specific video encoding method for generating a bitstream qualifies as a technical solution as provided for in Article 2.2, then the method for storing or transmitting the bitstream and the computer-readable storage medium storing the bitstream, as defined by the specific video encoding method,  are capable of achieving the optimized allocation of storage or transmission resources, and the like. Therefore, the method for storing or transmitting, as well as the computer-readable storage medium storing the bitstream, as defined by the specific video encoding method, constitutes a technical solution as provided for in Article 2.2 and constitutes subject matter eligible for patent protection.

7.2  Drafting of Description and Claims

7.2.1 Drafting of Description

The description of the invention patent application that contains the bitstream generated by a specific video encoding method shall provide a clear and complete description of that particular video encoding method, so that a person skilled in the technical field can implement it.  If the subject matter involves the method for storing or transmitting the bitstream and the computer-readable storage medium storing the bitstream, the description shall also provide relevant descriptions to support the claims.

7.2.2  Drafting of Claims

The invention patent application that contains bitstream generated by a specific video encoding method may be drafted as a storage method, a transmission method, and a computer-readable storage medium claim.  Such claims shall generally be drafted based on the claim for the specific video encoding method for generating the bitstream by referencing the claims for the particular video encoding method, or including all the features of the specific video encoding method.

Part II Chapter 10

9. Examination of Invention Application in the Field of Biotechnology

In this section, the term "biological material" means any material containing genetic information and capable of reproducing itself or being reproduced in a biological system, such as gene, plasmid, microorganism, animal, plant, and so on.

For the definition of the term "animal" and "plant", the provisions of Chapter 1, Section 4.4 of this Part shall apply. The said animal and plant therein may be a taxon of any rank of animal and plant, such as kingdom, phylum, classis, order, family, genus, species, and so on.

Part II Chapter 10

9. Examination of Invention Application in the Field of Biotechnology

In this section, the term "biological material" means any material containing genetic information and capable of reproducing itself or being reproduced in a biological system, such as gene, plasmid, microorganism, animal, plant, and so on.

For the definition of the term "animal" and "plant", the provisions of Chapter 1, Section 4.4 of this Part shall apply. The term "plant" refers to a life form that maintains its life by synthesizing carbohydrates and proteins from inorganic compounds, such as water, carbon dioxide, and inorganic salts, through photosynthesis, and is usually immobile. The said animal and plant therein may be a taxon of any rank of animal and plant, such as kingdom, phylum, classis, order, family, genus, species, and so on.

Part II Chapter 10

9.1.2.3 An Animal, a Plant and a Constitutive Part Thereof

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A somatic cell of an animal as well as a tissue and an organ of an animal (except an embryo) are not in conformity with the definition of "animal" said in Chapter 1, Section 4.4 of this Part, so they do not belong to the subject matters excluded according to the provisions of Article 25.1(4).

A single plant and its reproductive material (such as seed, etc.), which maintains its life by synthesizing carbohydrate and protein from the inorganic substances, such as water, carbon dioxide and mineral salt and so on through photosynthesis, belong to the category of the "plant variety" said in Chapter 1, Section 4.4 of this Part, and they are unpatentable in accordance with the provisions of Article 25.1(4).

If a cell, a tissue and an organ of a plant do not possess the above-mentioned characteristic, they cannot be regarded as "plant varieties", therefore, they do not belong to the subject matters excluded according to the provisions of Article 25.1(4).

Part II Chapter 10

9.1.2.3 An Animal, a Plant and a Constitutive Part Thereof

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A somatic cell of an animal, as well as a tissue and an organ of an animal (except an embryo), are not in conformity with the definition of "animal" said in Chapter 1, Section 4.4 of this Part, so they do not belong to the subject matters excluded according to the provisions of Article 25. 1(4).

A wild plant found in nature, not technically processed, and existing in its natural state, falls within the scope of scientific discoveries under Article 25.1(1) and is not patent-eligible. However, if a wild plant is artificially selected or improved and can be exploited industrially, the plant per se does not fall within the scope of scientific discoveries.

A single plant and its reproductive material (such as seed, etc.), which maintains its life by synthesizing carbohydrate and protein from the inorganic substances, such as water, carbon dioxide and mineral salt and so on through photosynthesis, belong to the category of the "plant variety" said in Chapter 1, Section 4.4 of this Part, and they are unpatentable in accordance with the provisions of Article 25.1(4).

According to the definition of "plant varieties" as mentioned in Chapter 1 Section 4.4 of this Part, if a plant and its reproductive material obtained by artificial selection or improvement of a discovered wild plant a cell, a tissue and an organ does not possess consistent morphological or biological characteristics or relatively stable genetic traits in population the above-mentioned characteristic, they cannot be regarded as "plant varieties", therefore, they do not belong to the subject matters excluded according to the provisions of Article 25.1(4).

Part III, Chapter 1

7.3 Other Special Fees

During the proceedings of the national phase for an international application, in addition to the fees mentioned in Section 1, Chapter 2 of Part V of these Guidelines and the grace fee discussed in Section 7.1 of this Chapter, there are the following special fees:

（1）the correction fee for translation errors, which shall be paid simultaneously with the request for correction of translation errors;  

（2）the fee for restoration of unity, which shall be paid within the time limit specified in the Notification to Pay the Restoration Fee for Unity issued by the examiner (for details of the fee for restoration of unity, see  Section 5.5, Chapter 2 of this Part );

（3）if a nucleotide and/or amino acid sequence listing as a  separate part of the description  exceeds  400 pages,  that  nucleotide and/or amino acid sequence listing shall be  calculated as  400 pages.

Part III, Chapter 1

7.3 Other Special Fees

During the proceedings of the national phase for an international application, in addition to the fees mentioned in Section 1, Chapter 2 of Part V of these Guidelines and the grace fee discussed in Section 7.1 of this Chapter, there are the following special fees:

（1）the correction fee for translation errors, which shall be paid simultaneously with the request for correction of translation errors;  

（2）the fee for restoration of unity, which shall be paid within the time limit specified in the Notification to Pay the Restoration Fee for Unity issued by the examiner (for details of the fee for restoration of unity, see  Section 5.5, Chapter 2 of this Part ).

（3）if a nucleotide and/or amino acid sequence listing as a  separate part of the description  exceeds  400 pages,  that  nucleotide and/or amino acid sequence listing shall be  calculated as  400 pages.

Part IV, Chapter 3

3.2 Eligibility as a Petitioner for Invalidation

Where the petitioner falls into one of the following circumstances, the request for invalidation shall not be accepted:

(1) ...

(2) ...

(3) ...

(4) ...

Part IV, Chapter 3

3.2 Eligibility as a Petitioner for Invalidation

Where the petitioner falls into one of the following circumstances, the request for invalidation shall not be accepted:

(1) ...

(2)where the filing of the request for invalidation does not reflect the true intention of the petitioner.

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Part IV, Chapter 3

4.6 Amendment to Patent Documents in the Invalidation Procedure

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Part IV, Chapter 3

4.6 Amendment to Patent Documents in the Invalidation Procedure

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4.6.4 Submission of Text of Amendments

Where the patentee amends the claims, the patentee shall submit the full-text replacement sheets and the table of comparison of the amendments.

Where multiple texts of amendments submitted by the patentee in the examination procedure of the same request for invalidation all comply with the provisions of Section 4.6.3 of this Chapter, the last submitted text of amendments shall prevail, and the remaining texts of amendments shall not serve as the basis for examination.

Part V Chapter 2

1. Time Limit for Payment of Fees

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The additional fee for filing an application refers to the fee required if the number of pages of the description (including drawings and sequence listing) of the application documents exceeds 30 or the number of claims exceeds 10. Such a fee shall be calculated based on the number of pages of the description or the number of claims.

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Part V Chapter 2

1. Time Limit for Payment of Fees

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The additional fee for filing an application refers to the fee required if the number of pages of the description (including drawings and sequence listing) of the application documents exceeds 30 or the number of claims exceeds 10. Such a fee shall be calculated based on the number of pages of the description or the number of claims. For a sequence listing in a computer-readable form submitted in the prescribed format, the number of pages shall not be counted.

Part V Chapter 9

1.2.1 Composition of Patent Certificate

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The said bibliographic data shall include: patent certificate number (serial number), the title of the invention-creation, the patent number (i.e., the application number), the filing date, the name of the inventor or designer, the name or title of the patentee, the address of the first patentee, the inventor or designer name as of the filing date of the patent, the applicant name or title as of the filing date of the patent, etc. Where the bibliographic data of a patent is too long to be contained in one page, additional page(s) may be attached.

Part V Chapter 9

1.2.1 Composition of Patent Certificate

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The said bibliographic data shall include: patent certificate number (serial number), the title of the invention-creation, the patent number (i.e., the application number), the filing date, the name of the inventor or designer, the name or title of the patentee, the address of the first patentee, the inventor or designer name as of the filing date of the patent, the applicant name or title as of the filing date of the patent, etc. Where the bibliographic data of a patent is too long to be contained in one page, additional page(s) may be attached.

For an international application or a divisional application, the inventor or designer name and the applicant name or title as of the filing date of the patent recorded in the Patent Certificate refer to the inventor or designer name and the applicant name or title at the time the international application enters the Chinese national phase or on the filing date of the divisional application.

Part V Chapter 9

2.2.1 Reasonable Delay in the Granting Process

The delays caused by the following circumstances are considered reasonable delays in the granting process: the reexamination procedure for amending the patent application documents in accordance with Rule 66 of the Implementing Regulations of the Patent Law, the suspension procedure in accordance with Rule 103, the preservation measure in accordance with Rule 104, and other reasonable circumstances such as administrative litigation procedures, etc.

Part V Chapter 9

2.2.1 Reasonable Delay in the Granting Process

The delays caused by the following circumstances are considered reasonable delays in the granting process: the reexamination procedure for amending the patent application documents in accordance with Rule 66 of the Implementing Regulations of the Patent Law, the suspension procedure in accordance with Rule 103, the preservation measure in accordance with Rule 104, and other reasonable circumstances such as the reexamination procedure to revoke a decision of rejection based on new reasons stated or new evidence submitted by the petitioner for reexamination, and administrative litigation procedures, etc.