Commercial Business Method Software Patents And Their Legal Protection

In the recent years, with the development of the e-commerce, the controversies arise extensively at home and abroad on such issues as the business method, especially whether the business method software should be issued patent. Because of the huge political and economic interests behind the e-commerce, the Western countries react actively, but each country has its own way of practice. Although disputes on some specific issues still remain unresolved among some developed regions and countries such as the U.S., Japan and some European countries, general speaking, the trend towards granting patent right to the business method software is on the upper hand. And this is the issue that we have to face now.In chapter one, the author introduces the historic background of the protection of the business method software, then defines several basic concepts: software, business method, business method software etc., finally introduces some different stances on the legal protection of the business method software.In chapter two, the author explicates the Chinese legal modes for the protection of the business method software under the TRIPS agreement, and explicates the limitations on both the copyright protection and the confidential protection for the business method software. Based on this, the author put forward the issue on whether the patent protection can be used for it.Based on the studies in the previous two chapters, the author, in chapter three, gives a brief introduction on the basis of jurisprudence for the patent protection of the business method software. Then the author explicates the necessity and feasibility to the patent protection for the commercial mode software in China based on the facts that Western countries adopt the strategy for the intellectual property right in three aspects: the technology is patented, the patent is standardized, the standard is globalized.The content of chapter four is the examination of the patentability of the business method software. First, the author introduces briefly the criteria of examining the patentability of the business method software in the U.S., Japan,the European countries etc. Then the author explicates in detail the method of examination on the patent application in China in three aspects: the novelty, creativity and practical utility. Finally, the author introduces and comments the examining of the software-implemented patent application prescribed in the National Intellectual Property Bureau's publication ((the Examination Guide for Patent Application)) .In chapter five, the author combined with the specific issues, such as "reversal engineering" .related to the copyright protection of the business method software and the protection of the business secret explicates the legal framework with the patent protection playing a dominant role and all forms other measures side by side.In chapter six, the author introspects the relevant legal regulations in China from two aspects: On the one hand, the subject matter of the patent protection and its essential conditions; on the other hand, the examining criteria for the patent application of the computer software in ((the Examination Guide for Patent Application)) . Then the corresponding measures are offered. In the conclusion of the chapter seven, the author explicitly expresses his viewpoint: China should make it clearly that patents can be granted to the business method software rather than to take the ambiguity attitude on this issue. Only in this way, it is conductive for China to establish its own criteria in e-commerce for the benefits of the development of the e-commerce in China.In this dissertation, the author, taking the research method of comparative jurisprudence in the combination of the TRIPS agreement, the PARIS CONVENTION and relevant regulations of the major developed western countries such as the U.S., Japan, discusses some uncertainties resulted from the prescriptions of the object of the patent protection in China's laws and regulations, discusses the possible breakthrough in the future, discusses the new development of the international criteria for the novelty^ creativity and practical utility of patent application, discusses the Chinese existing criteria for the nove^ creativity and practical utility of patents, and discusses the future necessary measures.In conclusion, the business method software can be protected by means of copyright and commercial confidential mode in accordance with either the TRIPS agreement or the relevant Chinese laws. But both the copyright andcommercial confidential mode has limitations. Therefore based on the TRIPS agreement, other international conventions for the protection of intellectual property and the practices of the developed western countries, the author discusses the stance and criterion our country should adopt.