Business method patent, also business model patent is called business method software patent as well because most business method patents are combined with computer software. Generally, it includes common business method patent and business method patent related to computer software.

According to the stipulation of the Patent Law, common business method is usually taken as the rule of mental activities, which can't be protected by the Patent Law; however, since the business method patent related to computer software may involve technology, settle some technological problems and achieve certain technological results, it may be patentable.

The legal basis for determining whether the business method is patentable in accordance with the Patent Law is the Article 25.1 (2), that is, rules and methods for mental activities are not the object protected by the Patent Law. In addition, the Guideline for Examination (2006) formulated by the State Intellectual Property Office prescribes the examining principles of invention patent applications involving rules and methods for mental activities to provide clearer and more definite examining standards of invention patent applications involving rules and methods for mental activities.

(1) If a claim concerns only rules and methods for mental activities, it shall not be granted a patent right. If a claim, except for the title of the subject matter, is defined by rules and methods for mental activities in the whole contents, in substance it concerns only rules and methods for mental activities, and it shall neither be granted a patent right.

(2) Except the cases described above in point (1), if a claim in its whole contents contains not only matter of rule or method for mental activities but also technical features, then the claim, viewed as a whole, is not a rule or method for mental activities, and shall not be excluded from patentability under Article 25. To be specific, the following two instances shall be identified,

(i) if the contribution of invention to the current technology only consists in the rules and methods for mental activities, it shall be treated as rules and methods for mental activities and not be granted a patent right;

(ii) if the contribution of invention to the current technology doesn't or doesn't merely consist in the rules and methods for mental activities, it shall not be excluded from patentability under Article 25.1 (2).