A patent right refers to the exclusive right of the inventor or his rights assignee to enjoy a specific invention and creation within a certain period of time. To put it simply, the patent right is a guarantee provided by the state to the patentee for his invention. However, not all “inventions” can be patented and can be protected by patents.

So, what kind of scheme can be protected by patents, and what kind of scheme can't apply for patents? In response to this problem, this paper has made some analysis to facilitate the applicant to judge whether his program can apply for a patent.

Regarding the question of whether it is a subject of patent protection, the Patent Law provides for Articles 2, 5, and 25, respectively.

I. Analysis of Article 2, Section 2 of the Patent Law

Article 2, paragraph 2, of the Patent Law of the People's Republic of China states: “The invention referred to in the Patent Law refers to a new technical proposal for products, methods or improvements”.

In addition, in the first chapter of Part II of the Patent Examination Guidelines, the following provisions are made for the second paragraph of the Patent Law: “The inventions referred to in the Patent Law are new to products, methods or improvements. Technical solutions, ... technical means are usually embodied by technical characteristics. ... The solution to technical problems without technical means to obtain technical effects in accordance with the laws of nature is not in accordance with the second paragraph of Article 2 of the Patent Law. object.……"

It can be seen from the above regulations that patents can only be applied when our application documents are a technical solution that solves certain technical problems and has technical effects consistent with natural laws. To put it simply, there are three technical, "technical solutions, technical problems, technical effects", all three are indispensable.

The following examples are given:

Example one

An encoding method, the method comprising:

One-to-one correspondence of each provincial name, and obtain the provincial name code;

One-to-one correspondence of each city-level city name, and obtain the city name code;

One-to-one correspondence of the names of the various administrative departments, and the name of the competent authority is encoded;

One-to-one correspondence of each mining enterprise name, and obtain the company name code;

One-to-one correspondence of each item type to obtain the item category code;

One-to-one correspondence coding of each mining level, obtaining mining level coding;

One-to-one correspondence coding for each mining area, and obtaining the mining area code;

One-to-one correspondence of each coal seam to obtain coal seam coding;

The work face coding is obtained by performing one-to-one correspondence on each work surface.

This example uses the above encoding so that each work surface corresponds to one code, so that the work surface can be replaced with code. In this scheme, assigning a code to each work surface is subjectively set by people, not technical features, without objective technical means, and does not involve technical aspects. Therefore, the program is not a technical solution and does not conform to patents. The provisions of Article 2, paragraph 2 of the Act.

Example two

A controller, wherein the controller is formed by two neural networks in series, the former neural network is a network controller, the latter neural network is a network simulator, and the output of the network controller is used as a network simulator and A closed-loop negative feedback is provided between the input of the controlled object, the output of the controlled object and the input of the network controller, and the difference between the output of the network simulator and the output of the controlled object is set to a subtraction relationship. Retraining process for network simulators.

In this example, the problem solved is the retraining process of the network simulator, and the retraining process of the network simulator is not a specific technical field, that is to say, the solution does not give a technical field for its specific application, and based on the The solution formed by the model or algorithm, which essentially involves only the calculation of the numerical value, is independent of the specific physical quantity of the specific technical field, that is to say, the solution does not solve the technical problem, and therefore does not comply with the second paragraph of the Patent Law Provisions.

2. Analysis of Article 5 of the Patent Law

According to Article 5 of the Patent Law, inventions that do not grant patent rights include:

1. Violation of national laws.

For example, equipment or tools dedicated to gambling; equipment for drug use; equipment for falsifying national currency are all inventions that violate national laws and cannot be patented. If the purpose of the invention itself does not violate national laws, the inventions and creations that violate the national laws due to abuse are not in violation of the law. For example, various weapons for the purpose of national defense, various poisons for medical purposes, narcotics, sedatives, stimulants, and chess for entertainment purposes. In addition, in accordance with the provisions of the Paris Convention for the Protection of Industrial Property, which was added by China, if the sale of a patented product is prohibited by law or the sale of a product manufactured by a patented method is prohibited, the product is invented or manufactured. The method invention should not refuse to grant a patent.

2. Violation of social inventions.

For example, designs with pictures or photographs of violent murder or obscenity, artificial sexual organs for non-medical purposes or their substitutes, methods of mating humans and animals, etc., are in violation of moral customs and cannot be patented.

3. Inventions that hinder public interest.

For example, an anti-theft device that blinds the thief or causes blindness to those who use it, cannot be granted a patent; an invention that creates serious environmental pollution due to its implementation or use cannot be granted patent. However, if an invention is only harmful due to abuse, or if it has a positive effect, it should not be considered as an invention that hinders the public interest.

3. Analysis of Article 25 of the Patent Law

According to the provisions of Article 25 of the Patent Law: Can the following circumstances not be granted a patent right?

1. Scientific discovery. It refers to the discovery and recognition of unknown substances, phenomena, changing processes, their characteristics and laws that have existed objectively in nature.

2. Rules and methods of intellectual activity. It refers to the human thinking movement, the means or process of the human brain to carry out spiritual and intelligent activities, and is an abstract thing. Its role is only to guide people to think, judge and remember the information they express, without using technical means or obeying the laws of nature, without technical characteristics, and thus cannot be granted a patent. For example, traffic rules, dictionary layout methods, information retrieval methods, speed algorithms or vocabulary, various games, entertainment rules and methods, and competition rules cannot be patented.

3. Diagnosis and treatment of diseases. The so-called "disease diagnosis method" refers to the whole process of identifying, researching and determining the cause or path state of a living human or animal; for example, Western medicine ultrasound, nuclear magnetic resonance, Chinese medicine, and other diagnostic methods.

4. Animal and plant varieties. It refers to new varieties of plants and animals that have been cultivated by biological methods. Animals and plants are living objects that are naturally generated, not created by people, cannot be produced by industrial methods, and therefore do not have the inventiveness and practicality in the sense of patent law, so patents cannot be granted.

5. A substance obtained by a nuclear transformation method. Mainly refers to elements or compounds obtained by methods such as nuclear fission and nuclear fusion using accelerators, reactors and other nuclear reaction devices. Since the substances obtained by the nuclear transformation method are related to the major interests of the country's economy, national defense, scientific research and public life, and are related to national security, it is not appropriate to disclose them. Most countries do not grant patent rights to such substances.

6. A design that primarily serves as a logo for the pattern, color, or combination of the two. The main design function of the pattern, color or combination of the two, such as bottle stickers, is to distinguish the specific products from the similar products, and the design of the product itself is not improved. The granting of its patent rights is not conducive to the improvement of the overall level of China's design.