[Direct answer]In the Beijing area, software algorithms themselves usually cannot directly apply for invention patents. However, when the algorithms are combined with computer software and hardware to solve specific technical problems and produce technical effects, they can be protected as invention patents. According to Article 2 of the Patent Law of the People's Republic of China (amended and implemented on June 1, 2021), an invention is a new technical solution proposed for a product, method, or its improvement; Article 25 does not grant patent rights to rules and methods of intellectual activities. The key to authorization lies in whether the algorithm reflects a "technical solution" rather than a pure mathematical method. It is recommended to sort out the technical scenarios and beneficial effects of the algorithm's implementation, entrust a professional agent to draft the claims, and supplement the protection with technical secrets. For more details, please refer to the following link:Intellectual property protection and corporate legal services.

I. Problem Background and Typical Scenarios

Whether algorithms can be patented is a common dilemma for internet and artificial intelligence companies. Typical scenarios include: start-up teams developing their own recommendation algorithms and image recognition models hoping to establish barriers; companies worried about the leakage of open-source code, hesitating to apply for patents or keep it confidential; and trying to obtain rights by packaging existing business rules into "algorithms" but being rejected. Many applicants mistakenly believe that "writing code can lead to a patent," ignoring the requirement that the technical solution must have novelty and inventiveness. When planning their intellectual property strategy, technology companies often need to consider the synergy between patents and trade secrets. For issues involving the overall compliance of the company, it is advisable to combine the two approaches.Business and contract dispute services for enterprisesEvaluation.

II. Key points of contention

There are three main points of contention. Firstly, a technical judgment: whether the algorithm is a pure mathematical operation or a solution to technical problems in combination with hardware is the core of the review. Both the reviewing party and the judicial party attach great importance to the "three technical elements". Secondly, a trade-off between disclosure and confidentiality: patent applications require full disclosure, which may undermine the value of technical secrets. Thirdly, the drafting of claims: limiting the algorithm to specific technical application scenarios directly affects the prospects of authorization and the scope of protection. For those involving the transformation of technical achievements, they can refer to the relevant guidelines.\nFinancial capital and foreign-related cross-border servicesMatch the financing needs.

III. Professional analysis by Hengluo Lawyers

Based on practical observations in handling intellectual property cases, the most common obstacle encountered in algorithm-related applications is "insufficient technicality". According to Articles 2 and 25 of the Patent Law, solutions that merely describe mathematical steps or business methods are easily identified as rules of intellectual activities and are not granted authorization; while solutions that bind data preprocessing, model inference, and specific hardware or communication processes are more likely to pass the creativity review. Hengluo Lawyers usually suggest: first, distinguishing between core algorithms and peripheral technical implementations, and transforming the parts with technical effects into claims; for truly core and difficult-to-reverse-engineer parts, prioritize protection as trade secrets. For software transactions, it can be followed up accordingly.Business and contract dispute services for enterprisesDraft the confidentiality and licensing terms.

IV. Practical suggestions and legal basis

The legal basis is Article 2 (definition of invention), Article 25 (non-patentable subject matter), and Article 22 (novelty, creativity, and practicality) of the Patent Law of the People's Republic of China (amended and implemented on June 1, 2021); the supporting rules on the review of inventions involving computer programs in the Implementing Regulations of the Patent Law and the Patent Review Guidelines. Practical advice: First, evaluate whether the algorithm is technically feasible and can be implemented as a method or product claim; fully disclose it while preserving the core secrets; simultaneously establish a technical secret management system; and entrust a qualified patent attorney to draft the application. For cross-border layouts, it can be combined with other relevant provisions.Financial capital and cross-border services involving foreign affairsPlan the PCT application.

5. Henglu Law Firm's Advice

The core of algorithm patenting lies in "technicality" rather than "novel ideas". Never directly apply for patents on pure business rules or mathematical formulas. Instead, focus on solutions that address specific technical problems and produce technical effects. There is a need to balance disclosure and confidentiality, and the core secrets can follow the path of technical secrets. Before applying for a patent, conduct a thorough assessment of patentability, and during the drafting stage, pay attention to the layout of patent claims and ensuring that the specification is fully disclosed. If you need systematic protection, you can seek assistance from relevant professionals or institutions.Special services and other case servicesDevelop a strategy for combining patents and trade secrets.

VI. Frequently Asked Questions

Q1: Is there a high chance of getting an invention patent granted for a software algorithm application?

The granting of a patent authorization does not depend on a single conclusion, but rather on whether the algorithm is technically feasible. According to Articles 2 and 25 of the Patent Law, pure mathematical methods, business rules, or methods of intellectual activity are not granted patent rights; however, algorithms combined with computer software and hardware to solve specific technical problems and produce technical effects can be reviewed as invention patents and may be granted authorization. Authorization also requires meeting the criteria of novelty, inventiveness, and practicality (Article 22). It is recommended to first conduct a patentability assessment, embed the algorithm into specific technical scenarios when drafting the claims, rather than submitting descriptions of abstract steps.

Q2: What materials are required to apply for an algorithm invention patent?

The core materials include: a technical disclosure document (describing the problem solved by the algorithm, the technical solution, the technical effect, and the technical architecture); source code or pseudo-code (used to support the specific implementation); a prior art search report (to determine novelty and inventiveness); and the applicant's qualification documents. When drafting the claims, the algorithm should be limited to specific technical application scenarios, and the description must be sufficiently disclosed to enable technicians in the field to implement it. If a patent agent is engaged, a power of attorney agreement must also be signed. Having complete and sufficiently disclosed materials is the basis for successfully entering the substantive review stage.

Q3: How much are the official fees and agency fees for applying for an algorithm invention patent?

The official fees are charged by the China Intellectual Property Administration according to standard rates, including application fees, substantive examination fees, and annual fees after authorization, etc. The specific amounts are subject to the annual fee schedule; applicants who meet the conditions for fee reduction and deferral may be granted a reduction in some official fees. The agency fees are determined by patent attorneys or law firms based on the complexity of the technology and the amount of work involved, without a unified government pricing system. The fees are subject to the terms of the agency contract. It is recommended that before applying, the agent evaluate the difficulty of writing and the costs involved, and arrange the core algorithms and non-core parts in a layered manner to control the overall cost.

Q4: How long does it usually take from applying for an algorithm invention patent to obtaining authorization?

The review period is affected by the review process. According to Article 34 of the Patent Law, the application shall be published eighteen months after the filing date; the request for substantive review shall be submitted within three years from the filing date. In practice, the average review period for inventions is based on the official publication, and it usually takes several years to obtain authorization. During this period, there may be one or two responses. For algorithm-related inventions, due to the complexity of technical judgments, there are often many review opinions. It is recommended to prepare response plans before publication and respond to review opinions in a timely manner to shorten the authorization period.

Q5: I want to apply for a patent for an algorithm. What should I do specifically in the first step?

It is recommended to proceed in four steps: First, sort out the technical problems and beneficial effects that the algorithm truly solves, and distinguish between the parts that can be made public and the core that needs to be kept confidential; Second, conduct a search of existing technologies to preliminarily determine the novelty and creativity; Third, entrust a qualified patent agent to embed the algorithm into specific technical scenarios to draft claims and a specification, ensuring full disclosure; Fourth, submit the application and request a substantive examination on schedule, and respond to the review opinions. For the core that is difficult to reverse engineer, technical secret protection can be used in parallel.

The above questions and answers are mainly based on the judicial practice in Beijing. There may be differences in the interpretation of the law in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Intellectual property protection legal services·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.