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Exceptions to patentability in the life science field in China

 Jason LIU
Patent Attorney
Chemistry & Biotechnology Department

Welcome to Linda Liu & Partners on air! I’m Jason LIU from the Department of Chemistry. Today my topic is about “Exceptions to patentability in the life science field in China”.
As we know, the patent law of China mentions several exceptions to patentability.
In Article 5, exceptions to patentability based on ordre public or morality are addressed. According to this provision, no patent right shall be granted for any invention that is contrary to the laws of the State or social morality or that is detrimental to public interest. In biology field, for example, the process for cloning human beings and the use of human embryos for industrial or commercial purposes are considered unpatentable.
Article 25 outlines that Chinese patent shall not be granted for the “animal or plant varieties” as well as “methods for diagnosis or treatment of diseases” etc. This is often the case in biology and medicine field.
According to the patent law, animal and plant varieties are excluded from patentability. Theoretically, cells of plant have the potential to develop into whole plant. Even if the description does not specify the plant cells can develop into whole plant, the plant cells are considered to belong to the scope of plant in most cases. Under the circumstances, the applicant can consider to protect the plant according to ‘Regulations for the Protection of New Varieties of Plants’ in China.
Method of treatment is eligible for patent protection in the US. However, according to the relevant provisions of the Chinese Patent Law, methods for the diagnosis or treatment of diseases are not patentable. To overcome the defect, we may consider amending such claim to a Swiss-type claim in China. A Swiss-type claim is typically drafted as “Use of Compound A in the preparation of a Reagent for use in a method…” or drafted as “Use of Compound X in the manufacture of a medicament for treating Y”. In the practice of patent examination in China, amending the subject matter of a claim to a Swiss-type claim is a conventional way of modifying methods for the diagnosis or treatment of diseases.
The above is what I want to share today. If you have any questions, please feel free to contact me. As a leading patent law firm in China, we are always glad to help. See you next time!

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