| Technology of computer software has been developing rapidly since the past media century, and the legal protection mode of computer software should be adjusted according to this kind of rapid development. Though the legal protection system of copyright has been set up in the most of countries in the world and in the relative international treaties, we should change the traditional mode because the torters tend to imitate the software' s designation thoughts instead of copying them directly, and the copyright law is not able to provide enough protection for computer software. More and more countries are trying to find a new way, and then the patent protection is needed. Nowadays some totally new software development methods that base on components technology make it easy to realize the codes of software. The literature nature of computer software is not as important as usual, otherwise the role of the tool nature becomes more and more apparent. This paper analyzed the affection of the new software development method, and then pointed out the internal relation between the components technology and the law protection mode. On the basis of the comparative study on the patent protection of the U. S., which has gained the leading position of law protection to software up to now, and the patent protection of the P. R. C., the author analyzed the current situation of the patent protection for computer software in our country. Hence, The author has researched this important topic and his findings are as follows.Part one, Basic theory of computer software and its legal protection firstly deals with the concept, the classification and the characters of computer software. Secondly, This part discussed four major kinds of legal protection mode of software. They are the copyright law protection, the patent law protection, the trademark law protection and the trade secret law protection. Especially, the paper discussed the disadvantages and the advantages of the former two kinds.Part two, Internal reason of technology for the patent protection of the computer software seeks legal basis on its justice from a jurisprudential perspective. The article points out that the protection method of computer software depends on its developmentmode, and the former must adapt itself to the later. The developing course of relative technology can be divided into three phases. During the three phases, the technology nature of software is becoming more important than its literature nature. The patent law is good at protecting the technical issue, so we should admit the patentability of the computer software invents. Because the emergence of the components technology revolutionarily affects the legal protection mode, the academic realm should enforce the study on the patent protection.Part three, Comparative study on the patentability of computer software between the U.S. and the P. R. C. Firstly, the basic rules of U.S. are discussed in three aspects. The first aspect is the author' s comprehension to the patentable topic in the patent law. Then the author analyzed eleven cases of CAFC/CCPA and "Examination Guidelines for Computer Related Inventions" . The paper discussed the common regulation in the P. R. C, and analyzed the three technical elements of the patentability standard of the computer software invention. Lastly, the author summarized the patentable topics of computer software in the U. S. as: program+ procedure, program+machine, a new computer built by "program+common computer" , software product and business method software invention, the topics in the P. R. C can be indicated as: program+ procedure, program+machine, a new computer built by "program+common computer" that comply with the strict technical standard.Part four, three legislative suggestions to the patent protection of computer software. This part pointed out that the patent protection level should adapt to the reality of the software industry, and the law should gain a balance between the private right and the public right. The first suggestion is to accept a... |
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