Research On Legal Issues In The Cloud Computing Patent

Cloud Computing represents a rapid technological change and business development, it also brings challenges to the patent system. Starting from the problems caused by technology and industry characteristic, the paper clarifies the path and direction of patent policy in response to Cloud Computing by analyzing the applicability of patent theories and Cloud Computing patent litigation in U.S. firstly, then it highlights such legal issues as patent eligibility, the functional features of the claim, and the divided infringement about Cloud Computing patent by comparative analys is and case analysis.There are more software system innovations in Cloud Computing with lower R&D costs and shorter cycle, the early strong patent protection is not suitable. For the business method innovation of Cloud Computing which completely relying on the Internet, competition rather than monopoly sometimes plays more significant role. In order to deal with the tragedy of the anti-commons and patent thickets crisis in Cloud Computing field with so many partic ipants and cumulative and massive technologies, patent policy levers should be to the direction of clearer scope of patent protection, more stringent standard of review and higher quality of patents. Therefore, weaken patent protection to Cloud Computing is appropriate, meanwhile it is necessary to taking into account the state of the nation’s industrial development and patent issues involved.Legis lation according to industry difference will suffer multiple difficulties such as different understandings, legal barriers from the TRIPS Agreement and vaguely defined industry. Administrative organ is only responsible for administrative review and determination of the validity of the patent, is therefore lack of overall vis ion and comprehensive consideration. Judic ial action can become the main way of dealing with the challenges from Cloud Computing because of its timeliness, convenience, professionalism, proficiency and suffic ient information.Research on specific patent legal issues of Cloud Computing verifies macro analysis above discussed.About the scope of patentable subject matter, several typical cases by CAFC after Bilski show that patent eligibility rules of software and business method of Cloud Computing will keep "intensive balance" in the longer term. Despite the growing popularity and the importance of Cloud Computing business methods, software and algorithms, the scope of patent will not be wide to include the algorithm because of the tension between the current industrial development and the patent system. Meanwhile, the scope will not shrink to exclude the Cloud Computing business method by "classification definition" because of the expected development of new technologies and the promotion of the patent.Cloud Computing has significant characteristics in cumulative and collaborative innovation, most Cloud Computing achieves specific functions through specific components or modules, so functional feature is inevitable. Paper argues that the existing restriction to the functional feature both in patent trial and review is in favor to the later-inventor institutionally, which would be used as an effective policy levers in the Cloud. The functional features in the claims of Cloud Computing patent should be restricted according to the goals to incentive innovation and the current situation of Cloud technology in China. Comparative analysis on jurisprudence and the rules of U.S., EU, Japan and Chinese Taiwan can provide a reference for China to review the unclear scope of protection and insuffic ient disclosure of specification in Cloud Computing patents.About the infringement issues of Cloud Computing patent on the terms of multiple-actors, the varied judgments in Akamai case reflect that the indirect infringement rule is invalid. The paper suggests that the joint tort rule without collus ion is available to deal with the divided infringement situations in Cloud Computing Patent. It not only blocks the loophole of evading liability by dividing performance of a method patent’s steps, meets the requirement that the patent is not infringed unless all the steps are carried out, but also not involves the innocent party. CAFC also defined "using" a system patent as "putting the system into service", and those who place the system as a whole into service(not operating each device physically) such as the users of Cloud system would become the object of infringement allegations. There have so many large enterprise users of the Cloud Computing, and the definition will be more useful to the patentee. Taking into account the Legis lative situation of other countries (regions), the technical characteristics of Cloud Computing, and China’s patent policy goal, it is unnecessary to formulate indirect infringement in China immediately. Given the complexity of Cloud Computing users, it is recommended to take a selective user responsibility to exclude non-commercial use of Cloud from tort liability.Generally, analys is of the "point" of the above-mentioned relatively microscopic and specific patent legal issues(chapter 3, 4 and 5) and the "face" about interaction between Cloud Computing and intellectual property law(chapters 1 and 2) confirms each other, and comes to the main point as follows. Patent law must respond to the challenges of Cloud Computing, but "extended protection" facing the current patent crisis is inappropriate. Legis lation distinguishing the industry is not feasible although Cloud Computing has its own characteristics. Judicial practice and law enforcement should response to Cloud Computing in patent protection.