Patentable Subject Matter:

In 1984, China promulgates the first Patent Law of the People’s Republic of China (“the 1984 Patent Law”).  The 1984 Patent Law protects three forms of inventions-creations: inventions, utility models (e.g., improvement relating to shape or structure) and design.  It, however, explicitly excludes from patent protection (1) scientific discoveries; (2) rules and methods for mental activities; (3) business methods; (4) methods for the diagnosis or treatment of diseases; (5) animal and plant varieties (product only); (6) substances obtained by means of nuclear transformation; and (7) food, beverages and flavorings, pharmaceutical products, and substances obtained by means of a chemical process.  Moreover, any invention-creation that is contrary to State or social morality or detrimental to public interest is also excluded from patent protection.


The invention-creation that can be protected under the Chinese Patent Law must be novel, inventive, and must have practical applicability.  The term “novelty” refers to something previously non-existent, i.e., absolute novelty, meaning that before the Chinese filing date or an appropriate priority date, no identical invention or utility model has been publicly disclosed in publications in China or abroad or has been publicly used or made known to the public by any other means in China.  The term “publicly disclosed” refers to a disclosure that may be made by word of mouth; in a document; by making an example of the invention or utility model freely available; and as a result of someone else doing the same thing.  Novelty is defeated if a patent for an identical invention or utility model was previously granted elsewhere, or published after the date of filing.  However, novelty is not defeated if within six months before the filing date, the disclosure was first made public at Chinese government sponsored or recognized international or prescribed academic or technological meetings, or without the applicant’s consent. 

Inventiveness requires that the invention has prominent substantive features and represents a notable progress.  “Substantive features” means the essential differences of the invention or utility model from the existing technology that is available before the filing date and publicly published or nationally known, and all necessary features constituting the invention or utility model must not be directly deducible from the existing technology.  That means the invention must show “substantive differences” which are beyond the thoughts of a person skilled in the art, and must have “better technical results” than the prior art.  Moreover,  the “substantive features” of the invention or utility model must be prominent and the progress of the invention must be notable. 

Practical applicability requires that the invention or utility model can be made or used in some industries, and can be reproduced many times, providing good social, economic and technical results.  The practical applicability requirement reflects the goal of the Chinese Patent Law to encourage inventive activities for developing the national economy, and has a broader meaning than the term “industrial applicability” adopted in other counties.

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