Defending enterprise model-related innovations | China Enterprise Regulation Journal

Defending enterprise model-related innovations | China Enterprise Regulation Journal

While the aggressive fringe of a artistic enterprise mannequin is past doubt, defending it as a patent is one other matter solely, requiring cautious consideration of examination standards.

A enterprise mannequin is a plan for producing revenue primarily based on enterprise guidelines. A novel enterprise mannequin performs a vital function within the survival and improvement of an enterprise.

Examination standards concerning patent eligibility and inventiveness for enterprise model-related innovations, aiming for affordable and efficient patent safety of these innovations, are clarified in two variations of the Patent Examination Tips issued by the China Nationwide Mental Property Administration (CNIPA), which took impact on 1 April 2017 and 1 February 2020m, respectively.

(1) PATENT ELIGIBILITY

Defending enterprise model-related innovations | China Enterprise Regulation Journal
Deng Yi
Associate, Director of the Japanese E&M II Division
Sanyou Mental Property Company

Article 25 of the Patent Regulation gives that patents shall not be granted for guidelines and strategies of mental exercise. The rules additional present {that a} enterprise mannequin containing each guidelines and strategies of mental exercise and technical options shouldn’t be excluded from patentability.

As well as, in line with article 2(2) and related interpretations within the pointers, a technical resolution eligible for patent shall have three simultaneous components, specifically, the technical drawback, technical means, and technical impact. An answer that doesn’t make use of technical means for fixing a technical drawback to acquire a technical impact conforming to the legal guidelines of nature shouldn’t be patent eligible.

Examples.

Half II, chapter 9, part 6.2 of the rules gives a way for working a shared bicycle as a optimistic instance, and a way for consumption rebate as a unfavourable instance.

Within the instance of the shared bicycle, the person’s behaviour is managed and guided by executing a pc programme on the terminal gadget and server, which includes accumulating and processing such knowledge as location and authentication info. Due to this fact this technique embodies the three components, and is patent- eligible.

Within the consumption rebate instance, a pc calculates the rebate quantity primarily based on the person’s consumption quantity. On this, the pc, as an entity for performing the tactic, will be considered a technical function, and due to this fact the tactic shouldn’t be excluded from the opportunity of acquiring a patent.

Nevertheless, because the rebate rule embodied on this technique is not more than a man-made rule, and doesn’t contain the legal guidelines of nature, the three components – technical drawback, technical means and technical results – will not be offered on this technique, so it isn’t patent-eligible.

Takeaways.

For patent eligibility, it isn’t enough to merely introduce an execution entity for the business guidelines (e.g. computer systems). Fairly, it’s also to be judged whether or not the processes carried out by the execution entity observe the legal guidelines of nature, and whether or not the three components of technical drawback, technical means and technical impact are concerned.

(2) INVENTIVENESS

Half II, chapter 9, part 6 of the rules gives that examination of the inventiveness of enterprise model-related innovations must be primarily based on the standards that take into account the enterprise guidelines, methodological options and technical options that “functionally assist one another in an interactive method” as integral.

This refers to enterprise guidelines and methodological options being carefully built-in with technical options to type the technical means for fixing a technical drawback and reaching the corresponding technical impact.

The rules additional present that if implementation of the enterprise guidelines and methodological options included in a declare contain adaptation or enchancment of technical options, it may be concluded that the enterprise guidelines, methodological options and technical options functionally assist one another in an interactive method, and the contribution of the enterprise guidelines and methodological options to the technical resolution shall be considered within the examination of inventiveness.

Examples.

Half II, chapter 9, part 6.2 of the rules gives an instance of technique for logistics and supply, remarking that the distinction between the claimed technique and the “prior artwork” made obtainable lies within the batch notification of order deliveries.

To attain the batch notification, the info structure and knowledge communication among the many server, logistics terminal and person terminal are tailored accordingly. The principles for supply notification and particular implementation of batch notification functionally assist one another in an interactive method, growing effectivity of the supply.

The rules additional comment that the person expertise is improved from the angle of being knowledgeable of the supply faster, concluding that the claimed technique represents an ingenious step over prior artwork.

Takeaways.

(1) Enterprise guidelines and methodological options might contribute to integral inventiveness along with technical options, so long as they functionally assist one another in an interactive method.

(2) The truth that the “implementation of the enterprise guidelines and methodological options includes adaptation or enchancment of the technical means” will be an important indicator in judging in the event that they “functionally assist one another in an interactive method”.

(3) Enterprise model-related innovations principally contain variations or enhancements to software program processes, comparable to knowledge structure and knowledge communication, reasonably than modifications to the construction or efficiency of {hardware}.

(4) Enchancment of the person expertise led to by technical means comprising technical options and enterprise guidelines will be taken as a technical impact.

CONCLUSION

The 2 amendments to the Patent Examination Tips, in 2017 and 2020, present clearer examination standards for enterprise model-related innovations. Carefully observe the provisions of the rules concerning patent eligibility and inventiveness when drafting software paperwork and responding to examination opinions.

To make sure that each patent eligibility and inventiveness are fulfilled and guarded, pay cautious consideration to the requirement that “enterprise guidelines and technical options ought to functionally assist one another in an interactive method”.

Mi Tai Wan Rui Law Firm intellectual property

Sanyou Mental Property Company
16/F, Block A, Company Sq.
No.35 Jinrong Avenue, Beijing 100033, China
Tel: +86 10 8809 1921 / 8809 1922
Fax: +86 10 8809 1920
Electronic mail: [email protected]

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