Draft Amendments to the Patent Examination Guidelines Open for Public Comment

To thoroughly implement the decisions and plans of the CPC Central Committee and the State Council, improve legal safeguards for intellectual property rights, and actively respond to reasonable demands from innovators regarding patent examination and granting, the China National Intellectual Property Administration (CNIPA) has focused on the development of emerging fields and new industries. In light of these efforts, and in response to innovators’ calls for improved patent examination and granting processes, CNIPA has drafted the Amendments to the Patent Examination Guidelines (Draft for Public Comment) (hereinafter referred to as the "Guidelines"), which was recently released for public feedback.

According to a CNIPA official, the current revision follows a needs-driven and user-oriented approach, focusing on improving patent examination standards in new and emerging fields. The amendments address issues that are urgent in examination practice and for which there is broad consensus.

In the section on substantive examination, to respond to innovators’ demands for stronger intellectual property protection in plant innovation and to establish a reasonable connection between patent rights and plant variety rights, the revision removes the definition of “plants” and introduces a new definition for “plant varieties.” This new definition aligns with that in the Seed Law of the People’s Republic of China, allowing breeding materials that cannot obtain plant variety rights to potentially be granted patent rights.

The Guidelines also clarify provisions concerning artificial intelligence (AI) and related technologies. For example, they specify the scope of examination for applications involving AI and big data, and add a requirement that, when necessary, the content of the specification must be examined.

New examination rules have been introduced: if the application documents include content such as data collection, label management, rule setting, or recommendation decision-making that violates laws, public morality, or harms public interest, the application will not be granted patent rights under relevant regulations. Additionally, examples of violations of laws and public morality have been added.

One new example included is “a method for establishing an emergency decision-making model for autonomous vehicles,” intended to illustrate that if the implementation of technologies such as AI contravenes ethical or moral standards, it constitutes an invention or creation that violates public morality as specified in Article 5, Paragraph 1 of the Patent Law, and thus cannot be granted patent rights.

The Guidelines also strengthen requirements for sufficient disclosure in patent specifications. Due to the potential "black box" nature of AI algorithms or models, specifications must disclose enough information to meet the requirement of full disclosure.