On The Review Of The Standards Of Computer Software Patents

The legal protection of Computer software is always a theoretical and practical side of judicial concern. Copyright protection model in the 1980s became the world's mainstream approach. With rapid development of the software industry, computer software copyright protection model has revealed many inadequacies; several representative countries in the information technology industry, including United States, Japan and Europe Union, have started to seek patent protection for computer software. Currently, the main concern of the computer software patent protection model in these countries is not "whether computer software is patentable" any more, but "what kind of computer software should be granted patent" namely to establish reasonable examination standards for software patent. But China still takes the more conservative wait-and-see attitude. Comparing to the relative systems of other countries in the world, the essay make an in-depth study on examination standards of computer software patent.This dissertation begins with a discussion of the question of whether it is proper to treat computer software as patentable subject matter. According to the analysis of the current practices and historical development process of other countries, the author points out that software algorithm is not a kind of "rules or methods of intelligence activities" and software can be a separate protection target of the patent law. The author also suggests that China should not grant business method patent at present.Next, the article analyzes the examination standards for novelty, creativity (non-obviousness) and practicality as the three criteria for software patent, which focus on analysis of the creativity (non-obviousness) standard. On the basis of analyzing the process of different countries'practice, and considering the characteristics of computer software, the author proposes the logical review standard for creativity of software patent.Finally the author uses the balance of interests method against the current situation in China to make a number of suggestions for revising the computer software-related patent examination system.The characteristics of the essay:1.The essay uses the comparative research method to analyze the existing practices and its historical development process of the software giants and then clarify several long-standing fuzzy theoretic questions.2.Combining the features of computer software, the author proposes a logical examination standard for creativity of software patent.3.From the perspective of the balance of interests, the author explores the influences of different examination standards of software patent by both theoretical and empirical approach, and then makes several proposals for revising the examination standards of computer software-related patent according to the current situation in China.