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Guangping ZHANG
Chinese Patent Attorney
Electrical Engineering Department
Linda Liu & Partners
As shown in Video Games and IP: A Global Perspective, a report released by WIPO in 2014, game industry has grown into a global industry worth US$65 billion. With the further development of computer and Internet technologies, the number of computer software-related patent applications in the game industry is growing. This article focuses on how can foreign applicants successfully apply for game software patents in China, and we emphasize on the discussion of several issues that foreign applicants should note when applying for game software patents in China.
1. What type of game software may be granted the patent right in China?
Based on the present examination practice of China, both the individual game software and the game software combined with hardware may be granted the patent right as long as they satisfy the relevant patent examination standards.
Chapter 9, Part II of the Guidelines for Patent Examination of China provides specific regulations on the examination for invention applications relating to computer programs, wherein, an invention application relating to computer programs is the subject matter of patent protection only if it constitutes a technical solution.
2. Typical ways of drafting claims that are apt to be granted through patent examination
(1) Method claim
For most inventions related to game software, one can draft method claims, such as a method for shooting games, a method for developing a game via scripts, a method for executing a script applied to computer games and a method for player to interact with virtual space. Yet it is important to note that the claim must constitute a “technical solution” defined by the Patent Law.
Deficiency of method claim is that it may be difficult to provide valid proof in the determination of infringement.
(2) Means-plus-function claim
In China, when drafting a method claim based on procedures or steps, one can also draft a corresponding device claim: “a … device, characterizing in that the device comprises a device for execution of step A, a device for execution of step B, and a device for execution of step C.”
As such device is a functional structure module which can not be deemed as an entity device, one shall note when drafting the corresponding device claim according to each step in the method claim that: (1) the subject matters of the device claim and of the method claim shall be mutually corresponding; (2) the function of each component in the device claim shall be in one-to-one correspondence with each step in the method claim. That is, in order to obtain protection for a claim of a game product in the form of function module, one needs to ensure that all components in the device claim are composed of virtual devices that reflect steps of the computer program instead of paralleling with physical hardware components.
[Examples of claim drafting]
Suppose: the description of the application comprises a computer program procedure realizing a pelter game:
Step A → Step B → Step C → Step D
① Method claim:
A method for a pelter game, comprising:
Step A: Receiving bets from players for predicting the winning pelter;
Step B: Shaking the first and second pelters to obtain results for each pelter;
Step C: Comparing the score of each pelter, the pelter with smaller score being the winning pelter; and
Step D: Awarding bets of the player that correctly predicts the winning pelter.
② Product claim in the form of function module:
A game system of a pelter game, comprising:
Device A for receiving bets from players for predicting the winning pelter;
Device B for shaking the first and second pelters to obtain results for each pelter;
Device C for comparing the score of each pelter, the pelter with smaller score being the winning pelter; and
Device D for awarding bets of the player that correctly predicts the winning pelter.
Where drafting a device claim in the manner of completely corresponding to each step of the procedure of a computer program or to the method claim reflecting the procedure of the computer program, one does not need to provide the block diagram containing each function module in the device claim or introduce each function module in the description. The device claim enjoys a treatment that is identical with the corresponding method claim in examination.
(3) Software-plus-hardware device claim
In the examination practice before, Chinese Patent Office did not accept a claim in the form of a combination of a virtual software function module and a physical hardware feature. The examiner normally would reject such software-plus-hardware claim on the grounds of being unclear or not being supported by the description.
For example, “a game console device comprising a processor and a memorizer, characterizing in that said processor is configured as: step 1; step 2; and step 3”.
However, in the recent case of patent reexamination (200880019469.2), the expert panel of the Patent Office provides a new idea: Although the description mainly describes a processor realizing its function via a computer program, yet from the aspect of technology implementation, a person skilled in the art can reasonable predict that in addition to the computer program, such function can also be realized by using FPGA, DSP, etc., rather than only by software as asserted by the examiner. Moreover, in the view of judicial practice, there are not plenty of cases to prove that such kind of claim is not supported by the description.
That is, the Chinese Patent Office may take an open attitude gradually towards the claims in the form of a combination of a virtual software function module and a physical hardware feature.
(4) Graphical user interface claim
Graphical user interface has appearance and interactive function attributes. Where a claim only involves regulation or setting of the appearance attribute, including the font, color, shape or layout of the composing elements of the game interface, it does not constitute a technical solution defined by the Patent Law. For the interactive function attribute, if it only designates a regulation which changes the appearance status of the interface based on a certain game operation, it does not constitute a technical solution defined by the Patent Law, while a game interface interaction technique is a bottom-signal or -data processing technique adopted for realizing artificially-stipulated interactive rules, and constitutes a technical solution defined by the Patent Law.
[Examples of claim drafting]
“1. A graphical user interface on a device with a touch-screen displayer, comprising:
a playing card for games, a first button, and a second button,
wherein, move said playing card to the left in response to the detection of the touch of the first button; and move said playing card to the right in response to the detection of the touch of the second button”.
This kind of claim is a definition of the interface interactive rules and does not involve the interface interaction technique of how to control a certain operation via detection and handling of signal or internal data, thus does not constitute a technical solution defined by the Patent Law.
However, for the following claim claiming a software device for displaying the behind of a graphic user interface, the examination practice does not exclude it from the possibility of being granted at present:
“1. A display apparatus of a device for a touch-screen displayer, said display apparatus displaying a playing card, a first button and a second button for game, and comprising:
a device moving said playing card to the left in response to the detection of the touch of the first button; and a device moving said playing card to the right in response to the detection of the touch of the second button”.
Certainly, this drafting manner needs to be supported by the description.
(5) Claim related to business method
At present, the Patent Office of China adopts the following new strategy of examination for the patent applications related to business methods: (1) determine whether or not the claim related to a business method is a subject matter of patent protection; (2) if yes, determine whether or not it possesses novelty and inventiveness. In the determination of inventiveness, determine whether or not the problem that the technical solution actually intends to solve is a technical problem based on the distinguishing feature(s): if not, the application does not make a contribution to the prior art, and thus does not possess inventiveness; otherwise, determine whether or not the solution to the technical problem is obvious.
Therefore, please specially reflect the “technical contribution” of the claim to the prior art when drafting such kind of claim.
We sincerely hope this article could be of some help to foreign applicants who expect to apply for game software patents in China.
