Can business methods be patented, and how to collect evidence?

Some applicants have consulted us. They have a business method that works well, but they are afraid that it will be imitated and copied, causing them to lose their competitiveness. They seek our advice on how business methods be patented.

Our answer is yes, but certain requirements need to be met when applying, and when forming a patent, we must consider whether it will be convenient to protect rights and collect evidence in the future.

According to the provisions of Chapter 9 of Part II of the “Guidelines for Patent Examination”, when examining whether a claim containing algorithmic features or business rules and method features is a technical solution, it is necessary to consider all the features recorded in the claim as a whole. If the claim records that a technical means utilizing natural laws is used to solve the technical problem to be solved, and thereby obtains a technical effect that conforms to natural laws, then the solution defined in the claim belongs to the technical solution described in Article 2, Paragraph 2 of the Patent Law.

If pure business methods be patented, it is a pure intellectual activity rule and cannot be protected because it does not belong to the subject of patent protection, such as “retail business model” and “diversified marketing strategy”. However, if such a business method is based on information technology, it can meet the requirements of the subject of patent protection, such as “a kind of *** automation system”.

Before business methods be patented, the difficulty of collecting evidence in the future should be considered when writing the patent application. Although the court has appropriately relaxed the burden of proof for patent owners of such method patents, the patent owner still needs to provide certain evidence.

Usually, in order to avoid creativity issues, some agents will write specific algorithms, formulas, etc. into their exclusive rights. Although this simple and crude writing method enables their business methods be patented, it does not take into account the issue of patent holders protecting their rights and collecting evidence in the future, leading to the embarrassing situation of having patents but being unable to be protected.

When drafting the claims of such patents, it is necessary to use inputs and outputs that are easy to obtain evidence as much as possible, and to provide a relatively comprehensive description of the specific application scenarios, detailed technical solutions, and specific forms of embodiment in the embodiments, laying the groundwork for future litigation.

Therefore, Whether business methods be patented depends on whether they can be presented using a technical solution and produce a technical effect. When writing and responding to examination opinions for such method patents, one cannot simply meet the requirements of creativity by using the algorithms and formulas in the patent claims. When taking the time to carefully study the issues of creativity, one must also consider the possibility of litigation.

Although it is uncertain whether the right holder will encounter a situation where he needs to defend his rights in the future, as an agent, it is the duty of this job to perform due diligence. We cannot wait until the rights of the patent holder are infringed before discovering that the patent has loopholes, until it is already too late.

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Original link:Can business methods be patented, and how to collect evidence?
About us:Shanghai Bulu Intellectual Property Firm (Special General Partnership)