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Trend of Examination on Utility Model Applications Involving Program or Method in China
Linda Liu & Partners
As more and more attention at home and abroad was paid to Chinese utility model, SIPO has given an increasing attention to the quality of the utility model and gradually become stabilized in terms of examination standard, especially in terms of standard to determine whether the application belongs to eligible subject matter for utility model. In the following, the author is going to analyze the examination trend on utility model applications involving program or method in China.
Case 1
This utility model application claims to protect a kind of mobile terminal. Claim 1 is as follows:
1. A mobile terminal (51) including:
IC card slot (511) set up in the side of the mobile terminal, configured to insert the bank IC card (512);
IC card reader, configured to read the security information of the bank IC card;
SIM card reader, configured to read the SIM card information of the mobile terminal;
IC card security information authentication chip, configured to authenticate security information of the IC card;
data transmitter, configured to transmit the IC card security information and SIM card information to the computer backstage according to the selected business of mobile banking, after the IC card security information is successfully authenticated;
data receiver, configured to receive the security and business information corresponding to the mobile banking business transmitted by the computer backstage;
microcontroller, coupled respectively with the IC card reader, the SIM card reader, the IC card security information authentication chip, the data transmitter, and the data receiver, in order to authenticate the IC card security information, and finish the mobile banking business according to the security and business information corresponding to the mobile banking business.
Initially, the examiner rejected this application on the grounds of ineligible subject matter. The applicant appealed and argued to the Board of Appeal as follows: the improvement of this application is the adding of the mechanisms like IC card slot, IC card reader, IC card security information authentication chip, etc. in order to solve the password security problem in mobile banking business, so as to improve security thereof. The purpose of the description of the authentication program of the security information in claim 1 is to describe the functions of the relevant hardware structure. Moreover, such security information authentication technology is a common technology and is not the improvement of this application. Therefore, this application belongs to eligible subject matter for utility model. The Board of Appeal accepted the applicant’s argument. Finally, this application was granted based on the above argument.
The withdrawal of the Decision of Rejection against this application pushed to a certain extent the rationalization of the examination standard on eligible subject matter for utility model. Until the end of the year 2013, as long as the utility model application involves program or method, the application would have been rejected by the examiner on the grounds of ineligibility. Along with the increase of cases similar to this application, and the discussion among the utility model examination department, Board of Appeal and applicants going into depth, the examination standard loosened slightly in recent time. Specifically, if the major improvement of the technical solution as claimed relies on the hardware structure, while the involved program or method belongs to prior art, or the adaptive adjustment resulted from the improvement of the hardware structure, the application has good chance to be granted as utility model.
Case 2
This utility model application claims to protect a kind of repairing device. The original claim 1 is as follows:
1. A repairing device configured to repair defects of the objects placed on the platform, including:
photographing unit, configured to photograph the object;
first defect extracting unit, configured to extract defect according to the difference image data between the image data photographed by the photographing unit and the reference image;
laser shape controller, configured to set the laser projection area at the whole defect extracted by the first defect extracting unit;
laser source, configured to emit laser beam;
first optical system, configured to project the laser beam emitted from the laser source at the area set by the first defect extracting unit;
second defect extracting unit, configured to extract, after repairing by the first Defect extracting unit, defect according to the brightness information of the image data photographed again by the photographing unit, and the difference image data between the image data and the reference image;
second optical system, configured to project, through the laser beam emitted from the laser source, part of the defect extracted by the second defect extracting unit by means of light spot projection; and
switching unit, configured to switch light path of the laser emitted from the laser source between the first optical system and second optical system.
The examiner pointed out that since software or program is necessary to extract, set up and repair the defect and obtain the difference image data data, this application does not belong to eligible subject matter for utility model. In response thereto, the applicant revised claim 1 based on the content of the Specification and argued as follows: the extraction technology of defect in resist film and foreign substance are existing art. The major improvement of this application is the adding of the second optical system and the switching unit in order to apply different light projection depending on defect type, so as to improve the repairing efficiency. Finally, this application was granted with the following revised claim 1:
1. A repairing device configured to repair defects of the objects placed on the platform, including:
photographing unit, configured to photograph the object;
defect extracting unit, configured to extract the shape of resist film defect and foreign substance defect according to the difference image data between the image data photographed by the photographing unit and the reference image;
laser shape controller, configured to set the laser projection area according to the shape of the resist film defect extracted by the defect extracting unit;
laser source, configured to emit laser beam;
first optical system, configured to project the laser beam emitted from the laser source at the projection area set by the laser shape controller according to the shape of resist film defect;
characterized in that the repairing device further includes:
second optical system, configured to project, through the laser beam emitted from the laser source, part of the shape of the foreign substance defect extracted by the defect extracting unit by means of light spot projection; and
switching unit, configured to switch light path of the laser emitted from the laser source between the first optical system and the second optical system.
Similar to Case 1, the examination of this application also indicates that in the situation that the major improvement of the technical solution as claimed relies on the hardware structure, while the involved program or method belongs to existing art or the adaptive adjustment resulted from the improvement of the hardware structure, the application is possible to be granted as utility model by arguing the major improvement thereof is hardware structure when the examiner questions the eligibility.
Conclusion
To sum up, as for the invention creation involving program or method, if the applicant expects to obtain protection through utility model, the author suggests firstly determining the major improvement of the technology. If the essential improvement relies on the change of the shape and/or structure of the product, the applicant may apply for utility model, while if the essential improvement relies on the adjustment of the process and procedure, the author does not suggest applying for utility model alone. The applicant may consider applying for invention and utility model on the same day.
