The rapidly evolving field of artificial intelligence (AI) is reshaping industries and innovation landscapes worldwide. With China emerging as a major player in AI technology, assessing patent eligibility for AI inventions has become a significant issue of concern within the Chinese patent industry.
Artificial intelligence is characterized by using digital computers or machines controlled by digital computers to simulate, extend, and expand human intelligence. This includes applications such as voiceprint recognition, facial recognition, autonomous vehicles, chatbots, machine translation, and medical image processing. At its core, AI relies on algorithms to achieve its objectives.
Algorithmic nature of AI inventions
One fundamental aspect of AI technology is its reliance on algorithms. While AI inventions primarily involve algorithms, it’s important to note that algorithms themselves are excluded from patent-eligible subject matters under Chinese patent law when classified as rules and methods for mental activities.
Evaluating patent eligibility
The evaluation of patent eligibility for AI inventions in China involves a two-step process:
1. Examination of patent eligibility: This initial examination aims to determine if a claim falls under rules and methods for mental activities, as outlined in Article 25, paragraph 1, item 2 of the Chinese Patent Law. If a claim, when considered as a whole, does not fall under this category, the examination proceeds to the next step.
2. Examination of technical solution: Following the examination of patent eligibility, the focus shifts to assessing whether the claim constitutes a technical solution as defined in article 2, paragraph 2 of the Chinese Patent Law. This examination considers the claim holistically, analyzing the technical means involved, the technical problems solved, and the technical effects achieved.
Holistic examination of claims
A crucial aspect emphasized by the China National Intellectual Property Administration (CNIPA) is the holistic examination of claims. This approach ensures that all elements within the claim are considered together rather than breaking the claim into separate technical and algorithmic features for individual evaluation.
Technical features in claims
Notably, a claim containing one or more technical features alongside algorithmic or business rule features does not fall under the category of rules and methods for mental activities. Therefore, it is not excluded from patent-eligible subject matters. This highlights the significance of including technical elements within AI invention claims to enhance their chances of patent eligibility.
The “Three Elements of Technology” test
Under Article 2.2 of the Chinese Patent Law, the “three elements of technology” test is applied to examine whether a claim constitutes a technical solution. This test entails considering all the features in the claim and evaluating whether the claim contains technical means that apply natural laws to address a technical problem, resulting in technical effects that align with natural laws.
Examples of patent eligibility examination
To illustrate the patent eligibility examination process, consider the following examples:
- Example 1 – Non-patent eligible claim:
A claim describing a model training method lacking technical features would be rejected as falling under the rules and methods for mental activities.
- Example 2 – Partially eligible claim
A claim involving algorithmic features and technical elements like ‘a computer’ and ‘a storage space’ may not fall under rules and methods for mental activities. However, if it fails to apply to a specific technical field to solve a technical problem with technical effects, it may not constitute a patent-eligible technical solution.
- Example 3 – Patent-eligible claim:
*A claim directed at training a model for detecting internet abnormal access behavior in the technical field of the internet would likely pass the “three elements of technology” test. This is because it addresses a specific technical problem and achieves technical effects by applying the laws of nature.*
In assessing the patent eligibility of AI inventions in China, a relatively low-threshold criterion is applied to determine whether a claim falls under rules and methods for mental activities. Including technical features within the claim is crucial for avoiding this classification. Subsequently, a more stringent “three elements of technology” test is employed to evaluate whether the claim constitutes a technical solution. This test requires the claim to involve technical means of applying natural laws to address a technical problem, resulting in technical effects that adhere to natural laws. Understanding these criteria and considerations is essential for navigating the landscape of AI patent eligibility in China and ensuring the protection of innovative AI inventions.
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