중국 특허법에서 인공지능 알고리듬의 특허적격성 -미국 특허법 및 유럽특허조약과의 비교법적 고찰-

China has been established the examination rules for algorithm of invention patent by amending the GUIDELINES FOR PATENT EXAMINATION from February, 2, 2020. As different from computer programs or mathematical methods, a new standard rule was applied for AI algorithm, and a standard was also proposed to approve the patentability. This study focuses on the patentability which was usually first proposed in the debate of patent protection for AI algorithm. By comparative study of patentability of AI algorithm invention of patent law of China, US and European patent convention, as legal basis and way of regulation is separate issues, it is found that all of them agreed that AI algorithm belongs to mathematical methods or rules and methods for mental activities.  It is because according to the judicial exception of US patent law, European Patent Convention and Patent Law of China, the essence of AI algorithm is non patentable subject matter, as such the patentability was not recognized. Though, the essence of AI algorithm is the non-patentable subject matters, and there must be differences in specific way, but the patentability of AI algorithm was recognized by the way of ‘integrated/as a whole criterion’. Regard to China, they have established the rules that the claim of criteria technical features and algorithm should be judged as a whole integrated. In US, if the claim recites AI algorithm, and also include additional elements and could intergrade with practical application by those elements as a whole, the claim was recognized as patentable subject matter. In Europe, if the claim has a mix of technical features and non-technical features, the patentability was recognized. In this case, if the non-technical features are algorithm, and the claim has technical features as a whole, the patentability was recognized.