On The Patent Protection And Anti-monopoly Law Regulation Of Computer Software

Computer software and the corresponding software industry involving intellectual property, anti-monopoly law, law against unfair competition and some other relevant legal system. On the one hand, on the protection of computer software in China mainly according to "Regulations for the Protection of Computer Software" in which computer software is protected by copyright mode. State Intellectual Property Office issued "Guidelines for Examination" chapter 9, in which is the types of an application for a computer program patent belonging to the patent object. In conclusion, legislation has no rejection of computer software patent. Some developed countries and regions have a complete system of the computer software patent protection. The characteristics of computer software determine the legitimacy of software patent protection system. China should also perfect the legislation for the software patent protection. On the other hand, the software industry, which is closely related with the public interests, is necessary to be regulated by public law. Especially computer software is possible to form monopoly and the anti-monopoly law is necessary. The countries and regions attaching importance to patent protection software also values computer software anti-monopoly system. The anti-monopoly system about computer software has its legitimacy. Although the computer software patent protection system and anti-monopoly system have legitimacy, the software patents as a legal monopoly has conflict with anti-monopoly law. The conflict is superficial, In fact, the two systems in maintaining the fair competition, protect the interests of consumers and improving the efficiency of resource allocation are consistent. Therefore, the conflict between computer software patent protection and anti-monopoly law can be coordinated. This thesis aims at above problems and is divided into three parts.The first part of this thesis is about computer software patent protection system and its legitimacy. Firstly, software patent protection system of some main countries and regions is analyzed, America didn't admit software patent protection, then introduce technical, and then practical as one of the software patents protection basis. Japan's patent protection system of computer software, whose types of object is gradually enlarged. In Europe, the software patent protection is relatively conservative. The combination of software and related equipment can obtain the patent protection, but not to protect separate software. These countries or regions patent protection system has great significance for China's software patent protection. China's software patent protection system is only involved chapter 9 of"Guidelines for Examination", and feasibility of computer software of business methods is improved. Software patent protection of China, isn't fixed in the Law, has a big gap compared with the developed countries and need to be improved gradually. Secondly, analysis of the legitimacy of the computer software patent protection, mainly around the reason of the computer software patent protection: the key to the computer software is the algorithm, the algorithm can be protected by patent mode; The novelty, inventiveness and practical applicability examination standard is suitable for computer software patent examination, and for the development of the modern computer software, computer software patent examination standard is close to practical applicability; At the same time as the patent system itself, namely the right of patent restriction, and the patent system time limit, the purpose of promoting innovation makes the computer software patent protection is more feasible; an indirect infringement responsibility in the patent system is also useful for computer software patent protection. Because the computer software patent infringement has close relation with the Internet and is not easy to be found, so the indirect infringement responsibility of computer software patent protection is necessary.The second part of the thesis mainly studies the anti-monopoly regulation of computer software and its legitimacy. Firstly, analysis of Anti-monopoly system of software in some major developed countries and regions are researched. In America, monopolistic conduct which is software standard monopoly and using market advantages affirmed by the anti-monopoly authorities, and some regulations are analyzed. In the European Union, anti-monopoly regulation system of software is analyzed by"European Patent Convention"and the most typical Microsoft software monopoly cases. Analysis of our country's software system is mainly based on anti-monopoly law and conducts of Microsoft, so the anti-monopoly system of the software needs to be further refined and perfect. Secondly, the legitimacy of computer software anti-monopoly regulation is analyzed: The reason that computer software needs the anti-monopoly system regulation; and the theoretical basis of anti-monopoly is referred; There are some problems in software monopoly, including decreasing competition and limiting innovation,increasing structural imbalance and harming the interests of investors indirectly,infringing the sharing and free choice of consumers; and anti-monopoly regulation of computer software has legitimacy because anti-monopoly system is the"balance"to solve these problems, that is to say, adjust the market behavior to improve competition, adjust the market structure to improve efficiency of resource allocation, maintain the public share rights of scientific and technological achievements. The anti-monopoly law maintains effective competition to make the social individual rights behavior does not damage the interests of the whole society and essential fair. This legitimacy is in some extent consistent compared with software patent protection.In the third part of the thesis mainly studies conflict and the coordination between the computer software patent protection and anti-monopoly regulation. Firstly, this thesis analyzes the conflict,there are three common forms, that is the conflict in nature between the private law and public law; the conflict in exertion while abusing patent rights and violation of anti-monopoly law; the conflict of economic function caused by distribution of economic interests. Secondly, the conflict is coordinated with the foundation of the same legitimacy. Software patent protection and anti-monopoly law play same roles in promoting competition and social progress; Both also can be unified in consumer protection; Efficiency is the common value goal of software patent protection and anti-monopoly law, in order to maintain the fair competition, improve the efficiency of resource allocation to realize the economic freedom, promote the development of the whole society. At last, to coordinate the conflict between computer software patent protection and anti-monopoly law, there are three coordination mechanism: Economic function of Computer software patent protection and anti-monopoly regulation is mainly based on interest redistribution to increase economic efficiency; monopoly right is given while the corresponding control measures are proposed, that is time limit principle and compulsory licensing principle, the reasonable use principles; The conflict between personal interests and public interests is coordinated by interests balance principle.