Research On The Patentability Of Algorithmic Inventions

With the rapid development of new business fields such as big data and the Internet,algorithms have increasingly become the soul of cutting-edge technologies and innovations,which also brings new expectations for the inclusion of algorithm-related inventions in patent protection.The revision of Patent Examination Guidelines in 2020 clearly includes algorithm-related inventions into the scope of patent protection,which is a response to this expectation.However,the current patent protection of algorithm-related inventions still faces the dual challenges of theoretical disputes and vague standards:First,whether the algorithm itself can be patented in algorithm-related inventions has been controversial.There were two opposing views in the early days.The mainstream view is that algorithms are regarded as a kind of thinking steps and abstract ideas,which cannot be protected objects of patent law.However,at that time,there were also a small number of scholars who insisted on the patentability of the program algorithm itself,and with the increasing prominence of algorithm innovation,more and more scholars supported this view.At the same time,a new point of view is also derived,which believes that it is necessary to distinguish the traditional program algorithm from the intelligent algorithm,and separately recognize the patentability of the intelligent algorithm.Therefore,whether the algorithm can break through the rules and methods of intellectual activity in Article 25,paragraph 1,2 of the Patent Law and become the subject of patent protection has become a new research hotspot.Secondly,the current judgment standard still adopts the “three elements of technology” review standard which is no different from general inventions.In terms of object review rules,it lacks pertinence for algorithm-related inventions,and the operability direction is not clear.The vague patentability rules lead to algorithm-related inventions relying more on the subjectivity of the examiner in specific practice,and it is not uncommon for similar cases to be disproved.On the other hand,my country’s review thinking has always been to light object review and focus on creativity judgment.For special objects such as algorithm-related inventions,the threshold for object review is relatively low,resulting in the accumulation of a large number of application texts in the creative evaluation process,which is wasted to a certain extent.Review resources.Therefore,the criteria for determining the patentability of inventions involving algorithms need to be improved urgently.In response to the above two problems,the main development ideas are as follows:On the one hand,it discusses the patentability disputes of the algorithms themselves in the inventions involving algorithms.Firstly,it analyzes the background of theoretical disputes from two aspects: the need for patentability brought about by the value-added algorithm and the insufficient protection of copyright and trade secret paths.Then,by returning to the essence of intelligent algorithms,the balance of interests of patent law and the feasibility of the current system,the radical thinking of the patentability of the algorithm itself is broken.Finally,it is proposed to distinguish the patent of the algorithm from the algorithm of the patent,and adopt a binary path for the patent protection of the invention related to the algorithm.Protect.On the other hand,the analysis should be based on what experience and theoretical basis to improve the patentability criteria for algorithm-related inventions.It mainly analyzes and discusses the relevant experience and judgment ideas accumulated by the two-step test method used in the patentability judgment of algorithm-related inventions in the United States,and compares it with my country’s examination standards to further clarify the direction of standard improvement.Secondly,through the analysis of the limitations of the overall principle that it is difficult to describe the relationship between the various parts,combined with the existing institutional foundation,it puts forward suggestions for adhering to the technical requirements in the patentability judgment and building the technical relevance judgment steps.