Page 352 - 2018 White Paper on the Business Environment in China
P. 352
8 White Paper on the Business Environment in China
China mints over 100,000 new software engineers window of opportunity open a bit more for obtaining
each year. Those engineers are writing an incredible a business method patent in China. According to ZY
volume of great software. For Western technology Partners’ analysis, it should become more common to
vendors already struggling to meet the challenges of see any examiner rejections for business method patent
open source and cloud, China just made things harder. applications focus on lack of novelty or inventive step
China is challenging the way Western firms make money compared to prior art rather than dismissing the subject
in China. For those companies that manage to figure matter outright as ineligible for patent protection.
out how to do business in China, their future looks very, Another aspect of the revised SIPO patent examination
very bright. Not everyone wants to play along, of course. guidelines is a loosening of rules regarding claim
Microsoft, for example, has opted to use the U.S. court amendments that can be made during an invalidation
system to block Chinese firms from doing business in procedure. The revised guidelines will allow applicants
their states unless they pay for their Microsoft licenses. to amend claims by incorporating limitations from other
China, quite simply, doesn’t think about intellectual claims as well as to correct obvious errors in the claims.
property (IP) in the same way that Microsoft does. China Previously, applicants have only been able to delete
firms charge for software differently as well. Software is claims, combine them or delete technical solutions
either delivered in appliances, the cloud, or firms simply in an attempt to protect claims during an invalidation
charge for support. None of these things can be pirated, procedure (Brachmann).
and each is how companies make money with open
source. All of which means the future of China’s software
industry will necessarily look nothing like the history of
the U.S. software industry. There won’t be companies
making billions of dollars selling proprietary shelf ware.
Intellectual property, in the Western sense, simply won’t
factor into China’s tech economy (Asay).
That being said, in October 2016, China’s State
Intellectual Property Office (SIPO) released revised
guidelines for its patent examiners and some were quick
to note that the revised guidelines were friendlier to
both software and business method patents. In March
2017, an article published on LinkedIn by a partner at
ZY Partners, a Beijing-based law firm that was offered
analysis on the updated SIPO guidelines, gave some
updated guidance on the likely effects of the revisions
on the patent examination procedures. Of greatest
interest is the fact that the guidelines that went into
effect in April 2017 continued to leave the window open
for software and business method patents. For software
patents, patent applicants will be able to claim a medium
plus computer program process instead of claiming
means plus function, a term which has typically been
narrowly construed by SIPO examiners. As ZY Partners’
analysis notes, previously ineligible claims directed at
“a computer program product” or “a machine-readable
medium” will now be eligible for patent protection in
China. For business methods, claims relating to business
models which include a technical feature in addition to
business rules or methods will be patent-eligible under
the new guidelines. Much like with software inventions,
the new rules do not open the door wide open to all
kinds of business methods, but they do crack the
352
China mints over 100,000 new software engineers window of opportunity open a bit more for obtaining
each year. Those engineers are writing an incredible a business method patent in China. According to ZY
volume of great software. For Western technology Partners’ analysis, it should become more common to
vendors already struggling to meet the challenges of see any examiner rejections for business method patent
open source and cloud, China just made things harder. applications focus on lack of novelty or inventive step
China is challenging the way Western firms make money compared to prior art rather than dismissing the subject
in China. For those companies that manage to figure matter outright as ineligible for patent protection.
out how to do business in China, their future looks very, Another aspect of the revised SIPO patent examination
very bright. Not everyone wants to play along, of course. guidelines is a loosening of rules regarding claim
Microsoft, for example, has opted to use the U.S. court amendments that can be made during an invalidation
system to block Chinese firms from doing business in procedure. The revised guidelines will allow applicants
their states unless they pay for their Microsoft licenses. to amend claims by incorporating limitations from other
China, quite simply, doesn’t think about intellectual claims as well as to correct obvious errors in the claims.
property (IP) in the same way that Microsoft does. China Previously, applicants have only been able to delete
firms charge for software differently as well. Software is claims, combine them or delete technical solutions
either delivered in appliances, the cloud, or firms simply in an attempt to protect claims during an invalidation
charge for support. None of these things can be pirated, procedure (Brachmann).
and each is how companies make money with open
source. All of which means the future of China’s software
industry will necessarily look nothing like the history of
the U.S. software industry. There won’t be companies
making billions of dollars selling proprietary shelf ware.
Intellectual property, in the Western sense, simply won’t
factor into China’s tech economy (Asay).
That being said, in October 2016, China’s State
Intellectual Property Office (SIPO) released revised
guidelines for its patent examiners and some were quick
to note that the revised guidelines were friendlier to
both software and business method patents. In March
2017, an article published on LinkedIn by a partner at
ZY Partners, a Beijing-based law firm that was offered
analysis on the updated SIPO guidelines, gave some
updated guidance on the likely effects of the revisions
on the patent examination procedures. Of greatest
interest is the fact that the guidelines that went into
effect in April 2017 continued to leave the window open
for software and business method patents. For software
patents, patent applicants will be able to claim a medium
plus computer program process instead of claiming
means plus function, a term which has typically been
narrowly construed by SIPO examiners. As ZY Partners’
analysis notes, previously ineligible claims directed at
“a computer program product” or “a machine-readable
medium” will now be eligible for patent protection in
China. For business methods, claims relating to business
models which include a technical feature in addition to
business rules or methods will be patent-eligible under
the new guidelines. Much like with software inventions,
the new rules do not open the door wide open to all
kinds of business methods, but they do crack the
352
