According to Huang, the revised guidelines draw a distinction between ‘computer programs per se’ and ‘inventions related to computer programs’, with the latter being patent-eligible. Here is his comment on the current status of software patents under Chinese statute, and how the incoming rules are likely to impact examination practice:
In the past, a software-related invention could be drafted only as a process claim or a ‘means plus function’ claim, and the latter is usually construed in a very narrow manner according to embodiments disclosed in the specification. Medium, computer program product and ‘processor plus process’ [claims] are not statutory subject matter in China. Consequently, patent protection for software-related inventions is weak and limited.
This problem may be addressed by the revised guidelines. Software claims such 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 steps of...’ shall become patent-eligible. A comprehensive protection for software-related patents is now expectable.
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