Patents (China) [Q34]
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5. Q: What invention-creations are unpatentable in China?
  A:

(1) Invention-creations contrary to the laws of the State
Where the object of an invention-creation per se is contrary to the laws of the State, it cannot be granted a patent right. For example, gambling facilities, devices or instruments, drug-taking appliances, apparatus for counterfeiting banknotes, bills, official documents, certificates, seals, historic relics are all inventions-creations contravening the laws of the State and no patent rights shall be granted for them.

Where the object of an invention-creation per se is not contrary to the laws of the State but the abuse of such invention-creation may be contrary to the laws of the State, it shall not be excluded from patent protection as above. Examples of such include the various toxicants, anesthetics, sedatives and analeptics used for medical treatment, and playing cards and chesses for entertainment.

Where the laws of the State merely restrict or limit the manufacture, sale or use of the product of an invention-creation, the product per se and the processes of its manufacture do not belong to the inventions-creations that are contrary to the laws of the State. For example, although the manufacture, sale or use of the various weapons for national defense are restricted by the laws of the State, these weapons per se and their processes of manufacture are still patentable subject matters.

(2) Invention-creations contrary to social morality
Where an invention-creation is against social morality, it shall not be granted a patent right. For example, no patent rights shall be granted for design with drawings or photographs of violence, murder or obscenity, an artificial sexual organ or its substitute for non-medical use, or a method of mating a human being with an animal.

(3) Invention-creations detrimental to public interest
The expression “detrimental to public interest” means that the exploitation or use of an invention-creation may cause detriment to the public or the society or may disrupt the good order of the State and the society. These invention-creations shall not be granted a patent right.

For example, where an invention-creation employs the means of disabling or injuring a person or damaging property, such as an anti-theft device or process by causing blindness to the thief, it shall not be granted a patent right.

Where the exploitation or use of an invention-creation may seriously pollute the environment or disrupt ecological balance, the invention-creation shall not be granted a patent right.

Where a patent application has words or pictures concerning an important political event of the State or a religious belief, hurting the sentiments of the people or of an ethnic group, or advocating superstition, it shall not be granted a parent right.

However, if an invention-creation is possibly detrimental to public interest in its abuse, or has certain defects despite its positive effects, such as a pharmaceutical product with side effects on human body, it is not considered as an invention-creation detrimental to public interest.

(4) Scientific discoveries
“Scientific discoveries” refer to the revelations of phenomena, transformation processes and their features and laws, which objectively exist in nature. Scientific theories are the generalization of understandings of nature, and are discoveries in a broader sense. All of these are the extension of the cognition of human beings. Because these discovered substances, phenomena, processes, features and laws are different from the technical solutions of reforming the objective world, they are not inventions-creations as referred to in the Patent Law and can not be granted patent rights.

For example, discovery of the photosensitive property of a silver halide under illumination can not be granted a patent right. However, a patent right may be granted for the photographic film and the process to produce the film in accordance with this discovery. Another example is, finding in nature a previously unknown substance existing in its natural state is merely a discovery, and can not be granted a patent right.
 
(5) Rules and methods for mental activities
“Mental activities” refer to human’s thinking movements. They originate from human’s thinking, and produce abstract results through inference, analysis and judgment, or, via human’s thinking movement, produce results only by indirectly acting on the nature. Rules and methods for mental activities are rules and methods governing people’s thinking, identification, judgment and memorization. Because they do not use technical means or apply the laws of nature, nor do they solve any technical problem or produce any technical effect, they can not be granted patent rights.

Examples include:
 methods and systems of managing organization, production, commercial activities, or economy etc.;
 traffic rules, schedules, competition rules;
 methods of deduction, inference, or operations;
 rules of classifying books, methods of editing dictionary, methods of searching information, methods of classifying patents;
 rules and methods of editing calendar;
 operating instructions of an instrument or an apparatus;
 grammar of various languages, rules of coding Chinese characters;
 computer languages, computing rules;
 short-cut arithmetic methods and relevant pithy formulae;
 mathematical theories and methods of conversion;
 methods of psychological test;
 methods of teaching, lecturing, training and beast training;
 rules and methods of various games or entertainment;
 methods of statistics, accounting, or bookkeeping;
 music books, food recipes or chess manuals;
 methods of keeping fitness;
 methods of disease survey and methods of population census;
 methods of presenting information; and
 computer programs per se.

(6) Methods for the diagnosis or for the treatment of diseases
“Methods for diagnosis or for treatment of diseases” refer to the processes of identifying, determining, or eliminating the cause or focus of diseases which are practiced directly on living human or animal bodies.

For humanity and ethical reasons, it is acknowledged that a doctor shall be given the freedom to choose any means in the course of diagnosis or treatment of diseases. Moreover, this kind of methods are not susceptible of industrial application because they are practiced directly on living human or animal bodies, and are not invention-creations in the context of the Patent Law. Therefore, methods for diagnosis or for treatment of diseases shall not be granted patent rights.

However, instruments or apparatus for implementing these methods of diagnosis or treatment, or substances or materials for use in such methods are subject matters for which patent rights may be granted.

(7) Animal and plant varieties
Animals and plants are living things. “Animal” in the Patent Law refers to the life form which can not synthesize carbohydrate and protein by itself but maintains its life only by absorbing natural carbohydrate and protein. “Plant” in the Patent Law refers to the life form which maintains its life by synthesizing carbohydrate and protein from the inorganics, such as water, carbon dioxide and inorganic salt, through photosynthesis, and usually is immovable.

Animal and plant varieties can be protected under other laws and regulations than the Patent Law. For example, new plant varieties can get protection under the Regulations on the Protection of New Varieties of Plants.

However, patent rights may be granted for the processes of producing animal and plant varieties. The processes of production herein refer to non-biological processes, and do not include those relating to the production of animals or plants through essentially biological processes.

Whether or not a process is an “essentially biological process” depends on the degree of human technical involvement in the process. If the human technical involvement is the controlling or decisive factor for achieving the result or effect of that process, the process is not essentially biological, and can be granted a patent right.

For example, the method of raising high yield dairy cattle through irradiation and the method of producing lean meat pigs by improving the raising approach are patentable subject matters.

Microorganism inventions refer to those relating to producing a chemical substance (such as an antibiotics) or decomposing a substance by means of microorganisms such as various bacteria, fungi, and viruses. Microorganisms and microbial processes are all patentable.

(8) Substances obtained by means of nuclear transformation
Substances obtained by means of nuclear transformation mainly refer to the various radioisotopes manufactured or produced by accelerators, reactors or other nuclear reaction apparatus. Such radioisotopes can not be granted patent rights.

However, the uses of those isotopes and the apparatus and devices employed therefor can be granted patent rights.

Methods of nuclear transformation concern the vital interests of the State in economy, defense, scientific research and public order, and shall not be monopolized by individuals or entities. Therefore, they can not be granted patent rights.

 

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